^  ^A^S-.Z  .\g53 


v.\ 


I 


UNNERSITV  OF  HC.  AT  CHAPEL  HIU 


00035472005 

This  book  must  not  be 
taken  from  the  Library 
building. 


^Izlfl^^f-" 


'    V 


THE  CODE 

OF 

NOETH    CAEOLINA, 

Enacted  March  2,  1883. 


Prepared  under   Chapters   145  and   315   op  the 

Laws  of  1881,  and  under  Chapter  191 

OF  the  Laws  of  1883. 


WILLIAM    T.    DORTCH,    JOHN    MANNING, 
JOHN  S.  HENDERSON. 


Il^T      T^-^TV  O      ^;^  O  X_i  XJIS/I  E  s . 


VOL.    I. 


NEW    YORK: 

BANKS  &  BROTHERS,  LAW  PUBLISHERS. 

144  Nassau  Steebt. 

473  AND  475  BROADWAY,  ALBANY. 

1883. 


^        vht    1883    by  William  L.  Saunders,  Secretary  of   State,  for  the 


Printer, 
,  North  Willi! 


CONTENTS  OF  VOLUME  I. 


THE   CODE— 

§§  1  TO  2183,   BOTH  mcLDsrvE. 


CHAPTERS. 

1.  Adoption  of  Minor  Children. 

2.  Aliens. 

3.  Apprentices. 

4.  Attorneys  at  Law. 

5.  Bastardy. 

6.  Bills,  Bonds  and  Promissory  Notes. 

7.  Burning  Woods. 

8.  Buint  and  Lost  Records. 

9.  Cleiks  of  Superior  Courts. 

10.  Code  of  Civil  Procedure. 

11.  Commissioners  of  Affidavits. 

12.  Common  Law. 

13.  Constables. 

14.  Contempt. 

15.  Coroner. 

16.  Corporations. 

17.  Counties,  County  Commissioners,  County  Government. 

18.  County  Revenue  and  Charges  and  Costs  in  Criminal  Actions. 

19.  County  Treasurer. 

20.  Court  Houses,  Prisons  and  Work  Houses. 

21.  Courts,  Inferior. 

22.  Courts  of  Justices  of  the  Peace. 

23.  Courts,  Superior. 

24.  Court,  Supreme. 

25.  Crimes  and  Punishments. 

26.  Criminal  Proceedings. 

27.  Deeds  and  Conveyances. 

28.  Descents. 

29.  Divorce  and  Alimony. 

30.  Draining  and  Damming  Lowlands. 

31.  Estates. 
33.  Evidence. 

33.  E.xecutors  and  Administrators. 

34.  Frauds  and  Fraudulent  Conveyances. 

35.  Guardian  and  Ward. 

36.  Habeas  Corpus. 

37.  Idiots,  Lunatics  and  Inebriates. 


iv  CONTENTS  OF  VOLUME  II. 

38.  Internal  Improvemenls. 

39.  Jurors. 

40.  Landlord  and  Tenant. 

41.  Liens.  .   , 

42.  Marriage   and   Marriage   Settlements,  and   the   Contracts   ol    Married 

Women. 
\d.  Mills. 

44.  Money  Remaining  in  Hands  of  Clerks  and  others. 

45.  Offices. 

46.  Official  Bonds. 

47.  Partition. 

48.  Processioning. 

49.  Rail  Road  and  Telegraph  Companies. 

50.  Roads,  Ferries  and  Bridges. 

51.  Sheriffs. 

53.  Surety  and  Principal. 

53.  Widows. 

54.  Wills  and  Testaments. 


CONTENTS  OF  VOLUME  II., 

§§    2184    ET    SEQ. 


CHAPTERS. 


1.  Agriculture  and  Geology. 

2.  Asylums. 

8.  Auctioneers. 

4.  Banks. 

5.  Boats  and  Canoes. 

6.  Boundaries  of  State. 

7.  Building  and  Loan  Associations. 

8.  Capitol,  Buildings  and  Grounds. 

9.  Cattle  and  other  Live  Stock. 

10.  Charities,  Public  and  Private. 

11.  Cherokee  Lands. 

12.  Cruelty  to  Animals. 

13.  Currency. 

14.  Dogs. 

15.  Education. 

16.  Elections  Regulated. 

17.  Entries  and  Grants. 

18.  Express  Companies. 

19.  Fairs. 

20.  Fences  and  Stock  Law. 

21.  Game,  Hunting,  Wild  Fowl. 

22.  Gaming  Contracts. 

23.  General  Assembly. 

24.  Health  and  Quarantine. 

25.  Impeachment. 


CONTENTS  OF  VOLUME  II. 

26.  Infamous  persons. 

27.  Insolvent  Debtojs. 

28.  Inspections. 

29.  Insurance. 

30.  Light-houses. 

31.  Limited  Partnership. 

32.  Local  Option,  Liquors  and  Wine. 

33.  Master  and  Servant. 

34.  Medical  Society,  Pharmaceutical  Association,  Dentistry 

35.  Militia  and  State  Guard. 

36.  Mines. 

37.  Names. 

38.  Navigation. 

39.  Notaries. 

40.  Oaths. 

41.  Officers  of  State. 
48.  Overseers. 

43.  Oysters  and  Other  Fish 

44.  Penitentiary,  Prisoners  and  Convicts. 

45.  Pensions. 

46.  Pilots. 

47.  Poor. 

48.  Public  Arms. 

49.  Public  Debt. 

50.  Public  Documents. 

51.  Public  Libraries. 

52.  Public  Printing. 
53    Register  of  Deeds. 

54.  Religious  Societies. 

55.  Revenue  and  Taxation. 

56.  Rivers  and  Creeks. 

57.  Salaries  and  Fees. 

58.  Slander  of  Women. 

59.  Statutes,  Repeal  and  Construction  of. 

60.  Strays. 

61.  Sunday  and  Holidays. 

62.  Towns  and  Cities. 

63.  Tramps  and  Vagrants. 

64.  Usury. 

65.  Weights  and  Measures. 

66.  Wrecks. 

67.  Concerning  the  Code 


APPENDIX. 

Constitution  of  the  United  States. 

Index  thereto. 
Constitution  of  North  Carolina. 

Index  thereto. 
Acts  of  Congress  Regulating  the  xVuthenticotion  of  Records 
Acts  of  Congress  Regulating  Naturalization. 
Acts  of  Congress  Regulating  the  Removal  of  Causes 


ERRATA. 


Section.  ,     , 

line  4,  for  "may  child  be  "  read  "child  may  he. 


39, 

87  "9,  for  "bonnd"  read  "  bond." 

1,  for  "  imprisioned"  read  "  imprisoned." 
5,  for  "a"  before  "  title"  read  "  the." 

239,  (3)     "    3.  Jo"^  "  case"  read  "cause." 


163,  (3) 
219 


291,  (3) 
326, 
364, 
364, 


505 


6,  for  ' '  therof "  read  ' '  thereof. " 

6,  insert  "  to  "  before  first  word  "  the. 

1,  for  "officers "  read  "  officer." 

4,  for  "summons"  read  "summon." 


446,  "    5,  for  "of"  read  "or 


2  insert  "to"  after  "according 


654!  (3)     ■ '    5,  for  ■ '  withness  "  read  "  witness. 


STATE  OF  NORTH  CAROLINA. 


IN  THE  YEAR  OP  OUR  LORD  ONE  THOUSAND  EIGHT  HUNDRED 
AND  EIGHTY-THREE. 


AN    ACT 

FOR  REVISING  AND  CONSOLIDATING  THE  PUBLIC  AND  GENERAL 
STATUTES  OF  THE  STATE  OF  NORTH  CAROLINA. 


The  General  Assembly  of  North  Carolina  do  enact 
the  following  named  chapters  and  sections,  to  be  known 
as  The  Code,  that  is  to  say: — 


ADOPTION  OF  MINOE  CHILDREN.     [Chap.  1. 


CHAPTER  ONE. 
ADOPTION  OF  MINOE  OHILDEEN. 

Section. 

4.  Bond  to  be  given  if  tlie  raiiioi- be 
an  orplian  having  properly. 

5.  Order  to  be  recorded. 

6.  Parent  or  guardian  must  be  party 
of  record. 


Section. 

1.  Person  desirous  of  adopting  mi- 

nor may  file  petition  in  the  su- 
perior court. 

2.  Court  may  grant  letters  of  adop- 

tion. 

3.  Effect  of  order. 

Section  1.  Person  desirous  of  adopting  minor  children 
may  file  petition  in  superior  court.  1872-'3,  c.  155, 
s.  1. 

Any  person  desiring  to  adopt  any  minor  child  may  file 
a  petition  in  the  superior  court  of  the  county  wherein 
such  child  resides,  setting  forth  the  name  and  age  of  such 
child  and  the  name  of  its  parents,  whether  the  parents 
or  either  of  them  be  hving,  and  if  there  be  no  living  pa- 
rent the  name  of  the  guardian,  if  any,  and  if  there  be 
no  guardian  the  name  of  the  person  having  charge  of  the 
child  or  with  whom  such  child  resides,  the  amount  and 
nature  of  the  child's  estate,  if  any,  and  especially  if  the 
the  adoption  is  for  the  mmority  or  for  the  life  of  the 
child. 

Sec.  2.  Court  may  grant  letters  of  adoption.  1872-'3,  c. 
155,  s.  2. 

Upon  the  filing  of  such  petition,  and  with  the  consent 
of  the  parent  or  parents,  if  living,  or  of  the  guardian,  if 
any,  or  of  the  person  with  whom  such  child  resides,  or 
who  may  have  charge  of  such  child,  the  court  may,  if 
the  petitioner  be  a  proper  and  suitable  person,  sanction 
and  allow  such  adoption  by  an  order  granting  letters  of 
adoption. 

Sec.  3.    Effect  of  order.     1872-'.3,  c.  155,  s.  3. 

Such  order,  when  made,  shall  have  the  effect  forth- 
with to  establish  the  i-elation  of  parent  and  child  be- 
tween the  petitioner  and  the  child  during  the  minority 
or  for  the  life  of  such   child,   according  to  the  prayer  of 


Chap.  2.]  ALIENS.  3 

the  petition,  with  all  the  duties,  powers  and  rights  be- 
longing to  the  relationship  of  parent  and  child,  and  in 
case  the  adoption  be  for  the  life  of  the  child,  and  the  pe- 
titioner die  intestate,  such  order  shall  have  the  further 
effect  to  enable  such  child  to  inherit  the  real  estate  and 
entitle  it  to  the  personal  estate  of  the  petitioner  in  the 
same  manner  and  to  the  same  extent  such  child  would 
have  been  entitled  to,  if  such  child  had  been  the  actual 
child  of  the  person  adopting  it.  Provided,  such  child 
shall  not  so  inherit,  and  be  so  entitled  to  personal  estate 
if  the  petitioner  specially  set  forth  in  his  petition  such  to 
be  his  desire  and  intention. 

Sec.  4.    Bond  to  l>e  given  if  the  minor  be  an  orphan  liav- 
ing  property.     1872-'3,  c.  155,  s.  4. 

If  such  child  be  an  orphan  and  without  guardian,  and 
shall  be  possessed  of  any  estate,  the  court  shall  require 
from  the  petitioner  such  bond  as  is  required  by  law  to  be 
given  by  guardians. 

Sec.  5.    Order  to  be  recorded.     1872-'3,  c.  155,  s.  5. 

The  order  granting  letters  of  adoption  shall  be  recorded 
in  the  office  of  the  clerk  of  the  superior  court  of  the 
county  in  which  it  is  made,  and  may  be  revoked  at  any 
time  by  the  court  for  good  cause  shown. 

Sec.  6.      Parent    or  guardian  must  be  party  of  record. 
1872-'3,  c.  155,  s.  6. 

The  parent  or  guardian,  or  the  person  having  charge 
of  such  child,  or  with  whom  it  may  reside,  must  be 
party  of  record  in  this  proceeding. 


CHAPTEE  TWO. 
ALIENS. 

Section.  |  Section. 

7.  Aliens  may  take  and  hold  lands.  |   8.  Prior  contracts  made  valid. 

Sec.   7.  Aliens  may  take  and  hold  lands.      1870-'71,    c. 

255,  s.  1. 

It  shall  be  lawful  for  aliens  to  take  both  by  purchase 
and  descent  or  other  operation  of  law  any  lands,  tene- 


4  APPRENTICES.  [Chap.  3, 

ments  or  hereditaments,  and  to  hold  and  convey  the  same 
as  fully  as  citizens  of  this  state  can  or  may  do,  any  law 
or  usage  to  the  contrary  notwithstanding. 

Sec.  8.  Prior  contracts  made  valid.      1870-'71,  c.  255, 

s.  2. 
All  contracts  to  purchase  or  sell  real  estate  by  or  with 
aliens,  heretofore  made,  shall  be  deemed  and  taken  as 
vaUd  to  all  intents  and  purposes. 


CHAPTER  THREE. 
APPEENTICES. 


Sbctioh. 
9.  Bindingto  be  by  indenture. 

10.  Remedy  tliereon. 

11 .  Who  may  be  apprenticed. 

12.  For  -wliat  time  bound. 


Section. 

13.  Duties  of  masters. 

14.  Duty  of  clerli. 

15.  Apprentices,  how  compelled  to 

serve. 

16.  Misconduct  of  masters. 


Sec.  9.  Binding  to  be  by  indenture.    C.  C.  P.  s.  482. 

The  binding  of  apprentices  shall  be  by  indenture,  made 
in  the  name'  of  the  clerk  of  the  superior  court  of  the 
county  of  the  one  part,  and  of  the  master  or  misti'ess  ot 
the  other  part;  which  indenture  shall  be  recorded  and 
filed  in  the  office  of  the  clerk  of  the  superior  court. 

Sec.  10.  Kemedy  thereon.    C.  C.  P.  s.  483. 

The  apprentice  may  bring  an  action  on  such  indenture 
in  the  name  of  the  clerk  and  his  successors,  and  recover 
any  damages  sustained  by  reason  of  the  breach  ot  the 
covenants  contained  in  said  indenture. 

Sec.  11.  Who  may  be  apprenticed.    C.  C.  P.,  s.  484. 

The  clerks  of  the  superior  courts  in  their  respective 
counties  shall  bind  out  as  apprentices: 

(1)  All  orphans  whose  estates  are  of  so  sraaU  value 
that  no  person  will  educate  and  maintam  them  for  the 
profits  thereof; 


Chap.  3.]  APPEENTICES.  5 

Stout  V.  Woody,  63—37;  Mitchell  v.  Mitchell.  07—307;  Spears  v.  Snell, 
74—210. 

(2)  All  infants  whose  fathers  have  deserted  their  fam- 
ilies and  been  absent  for  one  year,  leaving  them  without 
sufficient  support; 

Stout  V.  Woody,  63—37. 

(3)  All  infants  (not  living  with  the  father)  whose 
mother  has  secured  to  her  such  property  as  the  infants 
may  thereaftei-. acquire,  provided  the  clerk  deems  it  im- 
proper to  permit  such  infants  to  remain  with  the  niother; 

(4)  All  infants  who  make  application  to  the  board  of 
commissioners  of  the  county  for  relief  out  of  the  funds 
for  the  poor,  and  such  fact  is  certified  by  the  board  to 
the  clerk; 

(5)  All  infants  whose  parents  do  not  habitually  em- 
ploy their  time  in  some  honest,  industrious  occupation. 

Sec.  12.    For  wLat  time  liound.      1869— '70,  c.  7.     C.  C. 
P.,  s.  485.     1874-'5,  c.  89. 

Every  male  apprentice  shall  be  bound  to  some  discreet 
person  approved  by  the  clerk,  till  the  age  of  twenty-one, 
and  every  female  apprentice  until  the  age  of  eighteen 
years:  Provided,  that  no  white  child  shall  be  bound  to  a 
colored  master  or  mistress. 

Sec.  13.    Duties  of  masters.    C.  C.  P.,  s.  486. 

The  master  shall  provide  for  the  apprentice: 

(1)  Diet,  clothes,  lodgings  and  accommodation  fit  and 
necessary; 

(2)  Education  in  reading,  writing  and  arithmetic; 

(3)  Six  dollars  in  cash,  a  new  suit  of  clothes  and  a 
new  Bible,  at  the  end  of  the  apprenticeship; 

(4)  Such  other  education,  sum  of  money,  or  articles 
of  furniture  or  implements  of  trade,  as  may  be  agreed 
on  between  the  clerk  and  the  master,  and  inserted  in  the 
indenture. 

Sec.  14.    Duty  of  clerk.    C.  C.  P.,  s.  487. 

On  application  of  any  person  to  have  an  apprentice 
bound  to  him,  it  is  the  duty  of  the  clerk  to  inform  him- 
self of  the  circumstances  of  the  case;  and  for  this  pur- 
pose he  may  cite  before  him  the  relatives  of  the  orphan 
or  infant,  for  examination  on  oath ;  and  he  may  also  ex- 
amine such  other  persons  as  he  deems  proper.  In  the 
selection  of  a  master  he  shall  prefer,  so  far  as  may  be 
consistent  in  other  respects  with  the  comfort  and  in- 


ATTORNEYS  AT  LAW. 


[Chap.  4. 


teiest  of  the  apprentice,  some  tradesman  of  a  useful  art 
or  mystery. 

Sec.  15.    Apprentices,  how  conipelled  to  serve.    C.  C.  P., 

s.  488. 
If  an  apprentice  refuses  to  serve  as  required  by  the  in- 
denture or  by  law,  the  clerk  may,  on  application  of  the 
master,  compel  him,  by  citation  or  otherwise,  to  appear 
for  inquiry  into  the  facts;  and  if  the  complaint  is  well- 
founded,  and  the  apprentice  persists  in  such  refusal,  tlie 
clerk  may  commit  him  by  warrant  to  the  house  of  correc- 
tion or  the  common  jail  of  the  county  until  he  consents. 

Sec.  16.  Misconduct  of  masters.    1762,  ss.  19,  20.    C.  C. 
P.,  s.  489. 

Upon  complaint  of  any  apprentice  that  the  master  is 
guilty  of  cruelty,  ill-usage,  refusal  of  neccesary  provisions 
or  clothing,  or  any  other  violation  of  the  indenture,  or  of 
the  law  to^vards  such  apprentice,  the  clerk  may,  by  order, 
compel  the  appearance  of  the  master  before  him,  when 
he  shall  examine  and  determine  the  complaint;  and  if 
the  same  is  well  founded,  he  shall  cancel  the  indenture 
and  discharge  such  apprentice  from  his  obligation  of 
service,  and  may  proceed  to  appoint  another  master. 

Dowd  V.  Davis,  4  Dev.,  01;  Wyatt  v.  Morris,  3  D.  &  B.,  108;  Good- 
bread  v.  Wells,  2  D.  &  B.,  476;  McKay  v.  Bryson,  Sired.,  310;  Hiattv. 
Gilmer,  6  Ired.,  450;  Hooks  v.  Pcrliins,  Busb.,  31;  Allison  v.  Norwood, 
Busb.,'414;  Midgcttv.  McBryde,  3  Jon.,  21;  Owens  v.  Chaplain,  3  Jon., 
323;  Prue  v.  Hight,  6  Jon.,  265;  Ferrell  v.  Boykin,  Pliil.  9;  In  re  Ambrose, 
Phil.,  91;  Beard  v.  Hudson,  Phil.,  180;  State  v.  Elam,  Phil.,  460;  Biggs 
y.  Harris,  64-413. 


CHAPTER  FOUR. 
ATTORNEYS  AT  LAW. 


Section. 

17.  Attorneys  licensed  by  justices  of 

supreme  court. 

18.  Persons    from    other    states    li- 

censed, when. 

19.  Attorney  to  take  oaths. 


Section. 

20.  Tax  on  attorney's  license. 

21.  To  pay  a  tax  for  license. 

32.  To  pay  costs  of  suit  dismissed 
forhis  failure  to  file  a  com- 
plaint. 


Chap.  4.] 


ATTORNEYS  AT  LAW. 


Section. 

37.  Justices  of  the  peace  not  to  prac- 

tice as  attorneys. 

38.  Clerks  of    courts    forbidden   to 

practice  la'w;. 

29.  Power  of  attorney  to  be  produced 

and  filed  by  attorney,  if  re- 
quired; if  necessary  to  retain 
tbe  power,  what  to  be  done. 

30.  Right  of  attorney  to  speak. 


Section. 

23.  Guilty  of  fraud,  to  pay  double 

damages. 

24.  Judgment   against  attorney   for 

wilful  failure  to  pay  over 
money  collected  for  client 
upon  demand. 

25.  To  be  debarred  for  such  failure 

upon  notice  and  production  of 
the  judgment. 

26.  Attorney  not  to  be  debarred,  ex- 

cept, &c. 

•^Sec.  17.  Attorneys  licensedlby  justices  of  supreme  court. 
B.  C,  c.  9,  s.  1.     1818,  c.  963,  s.  3. 

Persons  who  may  apply  for  admission  to  practice  as 
attorneys  in  any  court,  shall  midergo  an  examination 
before  two  or  more  of  the  justices  of  the  supreme  court; 
and,  on  receiving  certificates  from  said  justices  of  their 
competent  law  knowledge  and  upright  character,  shall  be 
admitted  as  attorneys  in  the  courts  specified  in  such  cer- 
tificates. 

Ex  parte  Thompson,  3  Hawks,  355. 

i-'Sec.  18.  Persons  from  other  states  licensed,  when.    R.  C, 
c.  9.  .S.2.    1777,  c.  115,  s.  8. 

No  person  coming  into  this  state  from  any  other  state, 
or  from  any  foreign  country,  with  an  intention  to  prac- 
tice the  law,  shall  be  admitted  to  practice  as  an  attorney, 
unless  he  shall  have  previously  resided  one  year  in  this 
state,  or  shall  produce  to  the  said  justices  a  testmionial 
from  the  chief  magistrate  of  such  state  or  country,  or 
from  some  other  competent  authority,  that  he  is  of  unex- 
ceptionable moral  character. 

t-  Sec.  19.  Attorney  to  take  oaths.    B.  C,  c.  9,  s.  3.    177  7, 
c.  115,  s.  8. 

Attorneys  before  they  shall  be  admitted  to  practice  law 
shall,  in  open  court  before  the  judges  thereof,  take  the 
oath  prescribed  for  attorneys,  and  also  the  oaths  of  allegi- 
ance to  the  state,  and  to  support  the  constitution  of  the 
United  States,  prescribed  for  aU  public  officers;  and,  upon 
such  qualification  had,  and  oath  taken,  may  act  as  attor- 
neys during  their  good  behavior. 

Sec.  20.    Tax   on   attorney's    license.    B.  C,  c.  99,  s.  4. 
Resolution  of  1872-'3. 

There  shaU  be  a  tax  of  twenty  dollars  upon  each  license 


8  ATTOENEYS  AT  LAW.  [Chap.  4. 

to  an  attorney  to  practice  law  in  the  courts  of  the  state, 
to  be  paid  at  the  time  of  obtaining  hcense,  to  the  clerk  of 
the  supreme  court,  and  he  shall  apply  the  same  as 
prescribed  in  the  chapter  of  this  code,  entitled  "Public 
Libraries."  The  clerk  shall  be  entitled  to  six  per  cent, 
for  receiving  and  applying  said  money. 

Sec.  21.    To  pay  a  tax  for  license.    B.  C,  c.  9,  s.  4.   1806, 
c.  698. 

No  attorney  shall  be  permitted  to  practice  until  he  shall 
produce  the  receipt  of  the  clerk,  showing  that  he  has  paid 
the  tax  for  his  license. 

Sec.  22.  To  pay  cost.s  of  suit  dismissed  for  his  failure  to  file 
a  complaint.    R.  C,  c.  9,  s.  5.    1786,  c.  253,  s.  6. 

When  a  plaintiff  shall  be' compelled  to  pay  the  costs  of 
his  suit,  in  consequence  of  a  failure  on  the  part  of  his  at- 
torney to  file  his  complaint  in  proper  time,  he  may  war- 
rant such  attorney  for  all  the  costs  by  him  so  jmid,  and 
the  receipt  of  the  clerk  may  be  given  in  evidence  in  sup- 
port of  such  claim. 

Itobbins  and  Jackson,  ex  parte,  63-309. 

Sec.  23.  Guilty  of  fraud,  to  pay  double  damages.    R.  C, 
c.  9,  s.  6.     1743,  c.  37. 

If  any  attorney  shall  commit  any  fraudulent  practice, 
he  shall  be  liable  in  an  action  to  the  party  injured,  and 
on  the  verdict  passing  against  him,  judgment  shall  be 
given  for  the  plaintiff  to  recover  double  damages. 

Egerlon  v.  Logan,  81-172. 

Sec.  24.  .Judgment  against  attorney  ior  wilful  fail.ire  to 
pay  over    money  collected  for    client    upon    demand. 
1881,  e.  129,  s.  1. 
Any  attorney  into  whose  hands  shall  be  placed  for  col- 
lection any  promissory  note,  bond,  account,  chose  in  ac- 
tion, writing  obligatory  or  any  claim  calling  for  the  pay- 
ment of  money,  who  shall  collect  the  same,  and,  upon  the 
demand  of  his  client,  wilfully  fail  to  pay  over  tlie  amount 
..so  collected,  shall,  upon  the  ascertainment  of  the  fact  by 
jury,  have  judgment  taken  against  him  for  the  amount 
of  his  delinquency  together  with  interest  on  the  amount 
of  the  judgment  until  the  same  shall  be  paid. 

See.  25.  To  be  debarred  for  such  failure  upon  notice  .and 
production  of  the  judgment.     1881,  c.  129,  s.  2. 
Any  attorney  who  shall  wilfully  fail  as  aforesaid  to  pay 


Chap.  4.]  ATTORNEYS  AT  LAW.  9 

over  on  demand  to  his  client  any  moneys  which  may  be 
due  as  above  set  forth,  and  against  whom  judgment  has 
been  taken  as  prescribed  in  the  preceding  section,  shall, 
if  such  judgment  against  him  be  not  paid  off  in  nmety 
days  from  its  rendition  be  ipso  facto  debarred  from  prac- 
ticing in  any  courts  of  the  state. 

Sec.  26.  Attorney  not  to  be  debarred  except,  &c.  1870-'l, 
c.  216,  s.  4. 

No  person  who  shall  have  been  duly  hcensed  to  practice 
law  as  an  attorney  shall  be  debarred  or  deprived  of  his 
license  and  right  so  to  practice  law  either  permanently  or 
temporarily,  unless  he  shall  have  been  convicted,  or  in 
open  court  confessed  himself  guilty  of  some  criminal 
offence,  showing  him  to  be  unfit  to  be  trusted  in  the  dis- 
charge of  the  duties  of  his  profession,  and  unless  he  shall 
be  debarred  according  to  the  two  preceding  sections  and 
of  the  succeeding  section. 

Ex  parte  Schenck,  65-353. 

Sec.  27.    Justices  of  the  peace  not  to  practice  as  attorneys, 
1870-'l,  c.  yo,  s.  1.    1883,  c.  406. 

It  shall  not  be  lawful  for  any  attorney  at  law  or  justice 
of  the  peace  to  practice  law  as  an  attorney  in  any  of  the 
judicial  courts  held  for  the  county  wherein  they  hold  the 
office  of  county  commissioner  or  justice  of  the  peace. 
And  any  person  offending  against  this  section  shall  be 
guilty  of  a  misdemeanor,  and,  upon  conviction,  be  fined 
at  the  discretion  of  the  court  not  less  than  two  hundred 
dollars;  and  bv  the  judgment  of  the  coui-t  may  be  dis- 
missed from  the  practice  of  law  as  an  attorney,  and  be 
removed  from  the  office  of  justice  of  the  peace. 

See.  28.  Clerks  ofConrts  forbidden  to  practice  law.     1871 
-'2,  c.  120  s.  1.  1880,  c.  43. 

It  shall  not  be  lawful  for  any  deputy  or  assistant  clerk 
of  the  superior  court  clerk  of  any  county  to  practice  law 
as  an  attorney  in  any  of  the  judicial  courts  held  for  the 
county  in  which  he  performs  the  duties  of  a  deputy  or 
assistant  cleilt  as  aforesaid.  Any  person  offending 
against  this  section  shall  be  guilty  of  a  misdemeanor,  and 
be  find  at  the  discretion  of  the  court,  not  less  than  two 
hundred  dollars. 

Sec.  29.  Power  of  .attorney  to  be  produced  and  filed  by 
attorney,  if  required  ;  if  necessary  to  retain  the  power, 
what  to  be  done.    R.  C,  c.  31,  s.  57  (16).  1 844,  c.  13. 

Every  attorney  who  shall  claim  to  enter  an  appearance 


10  ATTOENEYS  AT  LAW.  [Chap.  4. 

for  any  person  shall,  upon  being  required  so  to  do,  pro- 
duce and  file  in  the  clerk's  office  of  the  court,  in  which  he 
shall  claim  to  enter  an  appearance,  a  power  or  authority 
to  that  effect  signed  by  the  persons  or  some  one  of  them 
for  whom  he  is  about  to  enter  an  appearance,  or  by  some 
person  duly  authorized  in  that  behalf,  otherwise  he  shall 
not  be  allowed  so  to  do:  Provided,  that  when  any  attorney 
shall  claim  to  enter  an  appearance  by  virtue  of  a  letter  to 
him  directed,  (whether  such  letter  purport  a  general  or 
particular  employment,)  and  it  shall  be  necessary  for  him 
to  retain  the  letter  in  his  own  possession,  he  shall,  on  the 
production  of  said  letter  setting  forth  such  employment, 
be  allowed  to  enter  his  appearance,  and  the  clerk  shall 
note  to  that  effect  upon  the  docket. 

Day  V.  Adams,  63 — 254;  New  Berne  v.  Jones,  63—606;  Alspaugh  v. 
Joues,  64 — 29;  Petteway  v.  Dawson,  64 — 450;  Reese  v.  Reese,  66 — 377; 
University  V.  Lassiter,  83 — 38;  Hollingsworlh  v.  Harman,  83 — 153;  Koonce 
V.  Brittain,  84—221. 

Sec.  30.    Right  of  attorney  to  speak.    K.  C,  c.  31,  S.  57, 
par.  15.   1874-'5,c.  114, 

Any  attorney  appearing  in  any  civil  or  criminal  action 
shall  be  entitled  to  address  the  court  or  the  jury  for  such 
a  space  of  time  as  in  his  opinion  may  be  necessary  for  the 
proper  development  and  presentation  of  his  case;  and  in 
jury  trials  he  may  argue  to  the  jury  the  whole  case  as 
well  of  law  as  of  fact. 

Leach  v.  Strange,  3  Hawks,  601 ;  Grice  v.  RieUs,  3  Dcv.,  63:  Greenlee  v. 
McDowell,  4  Irod.  Eq.,  481 ;  Potts  vs.  Francis,  8  Ired.  Eq..  300;  Walton  v. 
Sugg,  Pbil.,  98;  Keslcr  v.  Hall,  64—00;  Ex  parte  Scbenck,  65—353;  State 
V.  Williams,  65—505;  Kane  v.  Haywood,  66-1;  Moye  v.  Cogdell,  69—93; 
Caldwell  v.  Beatly.  69—365;  Mordecai  v.  Devereux,  74—073;  State  v.  Mil- 
ler, 75—73;  Davis  v.  Hill,  75—324;  State  v.  Smallwood,  78—500;  Coble 
V.  Coble,  79—589;  State  v.  Sykes,  79—618;  York  v.  Merritt,  80-385; 
Rogers  v.  McKenzie,  81—164;  State  v.  Braswell,  82—693;  Horab  v.  Knox, 
87-483. 


Chap.  5.] 


BASTAEDY. 


11 


CHAPTER  FIVE. 


BASTAEDY. 


Section. 

31.  Justices  of  the  peace  to  have  ex- 

clusive onginal  jurisdiction; 
warrant  issued  upon  complaint 
of  woman  or  affidavit  of  county 
commissioners. 

32.  Proceedings;  warrant  issued  for 

woman;  warrant  for  putative 
father;  issue  of  paternity;  ap- 
peal, &c. 

33.  Upon  appeal,   parties    and   wit- 

nesses to  be  recognized;  puta- 
tive father  making  default;  is- 
sue to  be  tried. 

34.  Upon  issue  of  paternity,  judge  or 

justice  to  continue  the  case  if  lie 
sees  fit,  until  woman  is  deliv- 
ered; in  the  meanlime,  to  recog- 
nize defendant  with  surety  for 
his  appearance. 


Section. 

35.  Fine  to  be  ten  dollars,  and  allow- 
ance not  to  exceed  fifty  dollars. 
Examinations  to  be  taken  within 
tliree  years. 

37.  Execution  may  issue  for  main- 
tenance. 

38.  In  certain  cases,  putative  fattier 

may  be  committed  to  house  of 
correction,  or  instead  thereof 
apprenticed. 

39.  Illegitimate  children  may  be  legit- 

imated by  superior  court  or 
judge. 

40.  Effects  of  such  legitimation;  le- 

gitimate in  all  respects  as  to 
father. 


Sec.  31.  Justices  of  the  peace  to  have  exclusive  original 
jurisdiction;  warrant  issued  upon  complaint  of  woman 
or  affidavit  of  county  commissioners.  1879,  c.  93,  s.  2, 
1879,  c.  116. 

Justices  of  the  peace  of  the  several  counties  shall  have 
exclusive  original  jurisdiction  to  issue,  try  and  determine 
all  proceedings  in  cases  of  bastardy  in  their  respective 
counties.  A  warrant  in  bastardy  shall  be  issued  only, 
upon  the  voluntary  afBdavit  and  complaint  of  the  mother 
of  the  bastard;  or,  upon  the  affidavit  of  one  of  the  county 
commissioners,  setting  forth  the  fact  that  the  bastard  is 
likely  to  become  a  county  charge. 

Slate  V.  Collins,  85—511;  State  v.  Wilkie,  85—513;  State  v.  Crouse, 
86—617. 


12  BASTAEDY,  [Ch-^p.  5. 

Sec.  32.    Proceeding's;  ^varrant  issued  for  woman;  warrant 

for  putative  father;  issue  of  paternity;  appeal,  &c.    R. 

C.  c.  13,  ss.  1,  4.     1741,  c.  30,  s.  10.     1799,  c.  531,  s. 

2.  1832,  c.  lO.  1832,  c.  17.  1850,  c.  14.  1879,  c. 

92,  s.  2.  1879,  c.  IIC. 
When  complaint  is  made  on  affidavit  by  one  of  the 
county  commissioners  as  set  forth  in  the  preceding  sec- 
tion, to  any  justice  of  the  peace  of  the  county  in  which 
the  woman  resides,  that  any  single  woman  within  his 
county  is  big  with  child,  or  delivered  of  a  child  or  children, 
he  may  cause  her  to  be  brought  before  him,  or  any  other 
justice  of  the  county,  to  be  examined  upon  oath  respect-, 
ing  the  father;  and  if  she  shall  refuse  to  declare  the 
father,  she  shall  pay  a  fine  of  five  dollars,  and  give  a 
bond  payable  to  the  state,  with  sufficient  surety,  to 
keep  such  child  or  children  from  being  chargeable  to 
the  county,  otherwise  slie  shall  be  committed  to  prison 
until  she  shall  declare  the  same,  or  pay  the  fine  aforesaid 
and  give  such  bond;  but  if  such  woman  shall,  upon  oath, 
accuse  any  man  of  being  the  father  of  such  child  or 
children,  or  if  proceedings  have  been  instituted  upon  her 
own  affidavit  and  complaint,  she  shall  accuse  any  man  of 
being  the  father  of  such  child  or  children,  the  justice  shall 
cause  him  to  be  brought  before  some  justice  of  the  peace 
of  such  county  to  answer  the  charge;  and,  if  he  shall, 
upon  oath,  deny  that  he  is  the  father  of  such  cliild  or 
children,  the  justice  shall  proceed  to  tiy  the  issue  of  pa- 
ternity, and  if  it  shall  be  found  that  he  is  the  father  of 
the  child  or  children,  or  if  he  shall  not  deny  upon  oatli 
that  he  is  the  father  of  the  child  or  children,  then  he  shall 
stand  charged  with  the  maintenance  thereof,  as  the  court 
may  order,  and  shall  give  bond,  with  sufficient  surety, 
payable  to  the  state,  to  perform  said  order,  and  to  in- 
demnify the  county  where  such  child  or  children  shall 
be  born,  from  cliarges  for  his  or  their  maintenance, 
and  may  be  committed  to  prison  until  he  find  surety 
for  the  same,  and  shall  be  liable  for  the  costs  of  the 
issue  or  proceeding,  and  from  this  judgment  and  find- 
ing, the  affiant,  the  woman,  or  the  defendant,  may  ap- 
peal to  the  next  term  of  the  superior  court  of  the  count}', 
where  the  trial  is  to  be  had  de  novo.  And  upon  tlie  trial 
of  the  issue,  whetlier  before  the  justice  or  at  term,  the 
examination  of  the  woman,  as  aforesaid,  taken  and 
returned,  shall  be  presumptive  evidence  against  the  ])er- 
son  accused,  subject  to  be  rebutted  by  other  testimony 
which  maybe  introduced  by  the  defendant;  and,  if  the 
jury  at  term  shall  find  that  the   i^erson  accused  is  tlie 


Chap.  5.]  BASTARDY.  13 

father  of  the  child  or  children,  then  the  judge  shall  make 
the  order  for  the  mainteuance  and  for  costs  of  proceed- 
ing, and  shall  take  bond  from  the  defendant  and  his  sure- 
ties for  the  maintenance  of  the  child  or  children,  and  to 
indemnify  the  county,  and  pay  the  costs;  and,  in  defaiilt 
thereof,  may  imprison  the  defendant.  If  the  putative 
father  shall  escape  or  be  in  any  other  county  out  of  the 
jurisdiction  of  such  justice  issuing  the  warrant,  it  shall 
be  issued,  endorsed,  executed  and  returned  as  provided  in 
"warrants  in  criminal  actions. 

AVilkie  v.  West,  1  Mur.,  319;  State  v.  Barrow,  3  Mur.,  1'21;  State  v.  Pot- 
away,  3  Hawks,  623;  State  v.  Carson,  2  D.  &B.,  36S;  State  v.  Harsljaw, 
4  D.  &  B. ,  371 ;  State  v.  Robeson,  3  Ired. ,  46;  State  v.  Ledbelter.  4  Ired.,  243; 
State  V.  Thompson,  4  Ired.,  484;  Stale  v.  Palton,  5  Ired.,  180;  State  v.  Lee, 
7  Ired.,  365;  State  v.  Cordon,  Sired.,  179;  State  v.  Long,  9  Ired.,  488;  Stale 
V.Wilson,  10  Ired.,  131;  State  v.  Roberts,  10  Ired .,  350;  Statev.  Haithcock, 
11  Ired.,  33;  State  v.  Jenkins,  13  Ired.,  131;  Statev.  Ellis,  13  Ired.,  264;  State 
V.  Auman,  13  Ired.,  241;  Statev.  Floyd,  13  Ired.,  383;  Statev.  Heim-.n, 
13  Ired.,  503;  State  v.  Pate,  Busk,  344;  State  v.  Brown,  1  Jon.,  1-29; 
Adams  v.  Pate,  3  Jon.,  14;  State  v.  Thompson,  3  Jon.,  365;  Ward  v.  Boll, 
7  Jon.,  79;  Clements  v.  Durham's  Adm'rs,  7  Jon.,  100;  State  v.  Henderson, 
Phil.,  329;  Stale  v.  Martin,  Phil.,  326;  Slate  v.  Allison,  Phil.,  346;  State  v. 
Elam',  Phil.,  460;  Statev.  Palin,  63—471;  State  v.  Waldrop,  63—507;  State 
V  McQuaig,  63-550;  State  v.  Mcintosh,  64-607;  Statev.  Hales,  65-244; 
State  V.  Beatty,  66— 648;  State  v.  AVoodruff,  67— 89;  Slate  v.  Broadway, 
69-411;  State  v.  Green,  71-173;  State  v.  Higgins,  73-226;  State  v. 
Hickerson,  72-421;  State  v.  Beasley,  75-211;  State  v.  Rose,  75-239; 
State  V.  Bennett,  75-305;  Warlick  v.  White,  7G-175;  State  v.  Britt, 
78—439;  State  v.  Rogers,  79—609;  State  v.  Price,  81—516;  State  v.  Bryan, 
83— 611  i  State  v.  Parish,  83—613;  State  v.  Collins,  85—511;  State  v. 
Wilkie,  85—513;  State  v.  Ingram,  85—515;  Slate  v.  Crouse,  86—617. 

Sec.  33.  Upon  appeal  parties  and  witnesses  to  be  recog- 
nized; pntative  lather  making  default,  issue  to  be 
tried.    K.  C,  c.  13,  s.  3.     1799,  c.  531,  s.  1. 

When  an  appeal  shall  be  taken  as  provided  for  in  the 
preceding  section,  the  justice  shall  recognize  the  woman, 
and  the  person  accused  of  being  the  father  of  the  child 
or  children,  Avith  sufficient  surety,  for  the  appearance  of 
such  woman  and  putative  fatlier  at  the  next  term  of  the 
superior  court  for  the  county,  and  to  abide  by.  and 
perform  the  order  of  the  court;  said  justice  shall  also 
recognize  the  witnesses  to  appear  at  said  superioi  court, 
and  shall  return  to  said  court  the  original  papers  m  the 
proceeding  and  a  transcript  of  his  proceedings,  as  re- 
quired in  other  cases  of  appeal.  If  the  putative  father 
fails  to  appear,  unless  for  good  cause  shoAvn,  the  judge 


14:  BASTARDY.  [Chap.  5. 

shall  direct  the  issue  of  paternity  to  be  tried,  and  if  the 
issues  be  found  against  the  person  accused,  he  shall 
order  a  capias  or  attachment  to  be  issued  for  the  father, 
and  may  also  enter  up  judgment  against  the  father  and 
bis  surety  upon  his  recognizance. 

Sec.  34.  Upon    issue    of   paternity,    judge  or  justice   to 
continue  the  case  if  lie   sees  fit   until  woman   is  de- 
livered ;    in    the    meantime   to  recognize    defendant 
with   surety   for   his  appearance.      K.  C,  c.  12,  s.  2. 
1741,  c.  30,  s.  11.    1799,  c.  531,  s.   2.    1850,  c.  14. 
When  the  judge  or  justice  trying  the  issue  of  paternity, 
as  the  case  maybe,  shall  deem  it  proper,  he  may  continue 
the  case  until  the  woman  shall  be  delivered  of  the  child; 
but  when  a  continuance  is  granted,  the  court  shall  recog- 
nize the  person  accused  of  being  the  father  of  the  child 
with  surety  for  his  appearance  either  at  the  next  term  of 
the  court  or  at  a  time  to  be  fixed  by  the  justice  granting 
the  continuance,  which  shall  be  after  the  delivery  of  the 
woman. 

State  V.  Green,  71—172.   , 

Sec.  35.  Fine  to  he  ten  dollars,  and  allowance  not  to  exceed 
fifty  dollars.    1879,  c.  92,  s.  2. 

When  the  issue  of  paternity  shall  be  found  against  the 
putative  father,  or  when  he  admits  the  paternity,  he  shall 
be  fined  by  the  judge  or  justice  not  exceeding  the  sum  of 
ten  dollars,  which  shall  go  to  the  school  fund  of  the 
county,  and  the  court  shall  make  an  allowance  to  the 
woman  not  exceeding  the  sum  of  fifty  dollars,  to  be  paid 
in  such  instalments  as  the  judge  or  justice  shall  see  fit, 
and  he  shall  give  bond  to  indemnify  the  county  as  pre- 
scribed in  section  thirty-two;  aud  in  default  of  such  pay- 
ment he  shall  be  committed  to  prison. 

State  V.  Harshaw,  4  D.  & B.,  371 ;  State  v.  Ellis,  13  Ired..  264. 

Sec.  36.  Examinations  to  be  taken  within  three  years  after 
birth.    R.  C,  c.  12,  s.  6.  1814,  c.  871,  s.  1. 

All  examinations  upon  oath  to  charge  any  man  with 
being  the  father  of  a  bastard  child,  shall  be  taken  within 
three  years  next  after  the  birth  of  the  child,  and  not 
after. 

Sec.  37.  Execution  may  issue  for  maintenance.    R.  C,  c. 
12,  s.  7,  1799,  c.  531,  s.  3. 

When  the  judge  or  justice  shall  charge  the  father  of  a 
bastard  child  with  its  maintenance,  and  the  father  shall 
neglect  to  pay  the  same,  then  the  judge  or  justice,  notice 


Chap.  5.]  BASTAEDY.  15 

being  served  on  the  defendant  at  least  ten  days  before 
the  return  day  stated  in  the  notice,  or  such  notice  being 
returned  by  the  sheriff  or  constable  that  the  defendant  is 
not  to  be  found,  may  order  an  execution  against  the 
goods,  chattels,  lands  and  tenements  of  the  father,  for 
such  sum  as  the  court  shall  adjudge  sufficient  for  the 
maintenance  of  the  bastard  child:  Provided,  that  the 
party  aggrieved  by  such  non-payment  shall  apply  for  the 
same. 

McPherson  v.  McCoy,  3  Dev.,  891;  Shaw  v.  Stewart,  1  D.  &  B.,  412; 
State  V.  Beatty,  66—648. 

Sec.  38.  In  certain  cases  putative  father  may  l>e  committed 
to  house  of  correction,  or  instead  thereof  appren- 
ticed.   1866-'7,  c.  10. 

In  all  cases  arising  under  this  cJiapter,  when  the  puta- 
tive father  shall  be  charged  with  costs  or  the  payment  of 
money  for  the  support  of  a  bastard  child,  and  such  puta- 
tive father  shall,  by  law,  be  subject  to  be  committed  to 
prison  in  default  of  paying  the  same,  it  shall  be  compe- 
tent for  the  court  to  sentence  such  putative  father  to  the 
house  of  correction  for  such  time,  not  exceeding  twelve 
months,  as  the  court  may  deem  proper:  Provided,  i\\^t 
such  person  or  putative  father,  at  his  discretion,  instead 
of  being  committed  to  prison  or  to  the  house  of  correc- 
tion, may  bind  himself  as  an  apprentice  to  any  person 
whom  he  may  select,  for  such  time  and  at  such  price  as 
the  court  may  direct.  The  binding  shall  be  by  indenture 
in  open  court;  and  the  price  obtained  shall  be  paid  to  the 
county  treasurer.  On  the  indenture  being  signed  by  the 
presiding  judge  of  the  court  and  by  the  master  receiving 
such  apprentice,  the  person  thus  bound  shall  be  treated 
and  regarded  as  an  apprentice  in  all  matters,  except  edu- 
cation. 

Sec.  39.  Illegitimate  children  may  be  legitimated  by  su- 
perior court  at  term.    B.  C.  c.  12,  s.  8.     1829,  c.  19, 

s.  1. 

The  putative  father  of  any  illegitimate  child  may  ap- 
ply by  petition  in  writing,  to  the  superior  court  of  the 
county  in  which  the  father  may  reside,  praying  that  such 
may  child  be  declared  legitimate;  and  if  it  shall  appear  that 
the  petitioner  is  reputed  the  father  of  the  child,  the  court 
may  thereupon  declare  and  pronounce  the  child  legiti- 
mated; and  the  clerk  shall  record  the  decree. 

Drake  v.  Drake,  4  D'jv.,  110;  Perry  v,  Newsom,  1  Ired.  Eq.,  28;  Craige 
V.  Neely,  6  Jon.,  170. 


16  BILLS,  BONDS  &  PROMISSORY  NOTES    [Chap.  C. 

Sec.  40.    Effects  of  such  legitimation;  legitimate  in  all  re- 
spects as  to  fatber.    B.  C,  c.  12,  s.  9.     1829,  c.  1!),  s.  3. 

The  effect  of  such  legitimation  shall  extend  no  further 
than  to  impose  upon  the  father  all  the  obligations  winch 
fathers  owe  to  their  lawful  children,  and  to  enable  the 
clild  to  inherit  from  the  father  only,  his  real  estate,  and 
also  to  entitle  such  child  to  the  pei'sonal  estate  of  his 
father,  in  the  same  manner  as  if  he  had  been  born  in 
lawful  wedlock;  and  in  case  of  death  and  intestacy,  the 
leal  and  personal  estate  of  such  child  shall  be  transmit- 
ted and  distributed  according  to  the  statute  of  descents 
and  distribution,  among  those  who  would  be  his  heirs  and 
next  of  kin,  incase  he  had  been  born  in  lawful  wedlock. 

Ivey  V.  Granberry,  66 — 233. 


CHAPTER  SIX. 


BILLS,  BONDS  AND  PEOMISSOET  NOTES, 


Section. 

41.  Bills,  bonds,  and  notes  for  money 
negotiable  as  inland  bills  of  ex- 
change ;  indorsee  may  sue  "when 
the  obligee  may  sue. 

43.  Orders  ill  writing;  drawer  or  ac- 
ceptor liable  thereon;  protest 
and  notice  thereof  before  action 
against  drawer. 

43.  Daj'sof  grace  on  bill,  &c. ;  except 

those  payable  on  demand. 

44.  Interest  on  bills,   &c. ;   when  to 

accrue. 

45.  Bills,  &c.,  payable  on  demand  to 

bear  interest. 


Sectiox. 

46.  Contracts  for  delivery  of  articles 

bear  interest    as  moneyed  con- 
tracts. 

47.  Bills  of   exchange  bear  interest 

from  time  of  payment. 

48.  Damages  on  protested  bills  of  ex- 

change at  various  places. 

49.  Protest    of    notary,    justice    of 

peace,   or  clerk  of  a  court  of 
record,  evidence  of  demand. 

50.  Indorsers  of  negotiable  securities 

liable  as  sureties. 

51.  Bonds  payable  to  clerk,  <&c.,  for 

benefit  of    suitors,    suable    in 
name  of  state. 


Sec.  41.  Bills,  bonds,  and  notes  for  money  negotiable  as 
inland  bills  of  exchange;  indorsee  may  sue  when  The 
obligee  may  sue.  3,  4  Anne.  c.  9.,  K.  C,  c.  13,  s.  1. 
1762,  c.  70,  s.  2.  178C,c.  248,  s.  1.  1789,  c.  314,  s.  3. 

All  notes  signed  by  any  person,  body  corporate,  or  by 
the  servant  or  agent  of  any  corporation,  banker,  mer- 


Chap.  6.]  BILLS,  BONDS  &  PROMISSORY  NOTES.  17 

chant  or  trader,  who  is,  or  shall  be  usually  intrusted  to 
sign  such  promissory  notes  for  them,  whereby  such  per- 
son body  corporate,  or  the  servant  or  agent  of  any  cor- 
poration, banker,  merchant,  or  trader,  shall  promise  to 
pay  pny  person,  body  corporate,  or  the  servant  or  agent 
of  any  corporation,  banker,  merchant,  or  trader,  the 
money  mentioned  in  such  note,  shall  be  construed  to  be, 
by  virtue  thereof,  due  and  payable  to  such  person,  body 
corporate,  or  the  servant  or  agent  of  any  corporation, 
banker,  merchant,  or  trader,  to  whom  the  same  is  made 
payable;  and  the  pei-son,  body  corporate,  or  the  servant 
or  agent  of  any  corporation,  banker,  merchant,  or  trader, 
to  whom  such  money  is  payable,  may  maintain  an  action 
for  the  same,  as  thev  might  upon  inland  liills  of  exchange; 
and  the  same,  as  likewise  all  bonds,  bills,  and  notes  tor 
money,  with  or  without  seal,  and  expressed,  or  not,  to 
be  payable  to  order  and  for  value  received,  may  be  assign- 
able over  in  like  manner  as  inland  bills  of  exchange  are 
by  custom  of  merchants  in  England:  and  the  person, 
body  corporate,  or  the  servant  or  agent  of  any  corpora- 
tion, banker,  merchant,  or  trader,  to  whom  such  promis- 
sory note,  bill,  bond,  or  sealed  note  is  assigned  or  indorsed, 
may  maintain  an  action  against  the  person,  body  corpor- 
ate, or  the  servant  or  agent  of  any  corporation,  banker, 
merchant,  or  trader,  who  shall  have  signed  such  promis- 
sory note,  bond,  bill,  or  sealed  note,  or  any  who  shall 
have  indorsed  the  same,  as  in  cases  of  inland  bills  of  ex- 
change: Provided,  that  the  indorsee  or  assignee  of  any 
bill,  bond,  or  note,  undersea!,  may  maintain  an  action  on 
the' same  in  his  own  name,  as  indorsee  or  assignee,  pro- 
vided the  original  obligee  could  have  maintained  an  action 
on  the  same  bill,  bond,  or  note  with  seal. 

Jamieson  V.  Farr,  1  Hay.,  209  (183);  Tindall  v.  Johnston,  1  Hay.,  428"(372). 
Campbell  V.  Mumford,  1  Hay.,  459  (398);  Hodges  v.  Clinton,  Mar.,  79; 
Neilv.  New  Berne,  1  Mur.,  133;  Jones  v.  Person,  3  Hawks,  269;  Goodloe 
V.  Taylor,  3  Hawks,  458;  Lawrence  v.  Mabry,  3  Dev..  473;  Hatcher  v.  Mc- 
Morinc,  3'Dev.,228;  Hatcher  v.  McMorino,  4  Dev.,  123;  Purtel  v.  Moreheid. 
2  D.  &B.,  239;  Haywood  v.  McNair,  3  D.  &  B.,  283;  Elliott  v.  Smither- 
nian,  3  D.  &  B.,  338;  Alexander  v.  Oaks,  2D.  &  B.,  513;  Dawson-v.  Pett- 
way!  4  D.  &  B.,  396;  French  v.  Barney,  1  Ired.,  219;  Bloom  v.  Bowman,  3 
Ired'.,  338;  Hubbard  v.  Williamson,  4  Ired.,  266;  Hubbard  v.  Williamson,  5 
Ired.',  397';  Roddick  v.  Jones,  6  Ired.,  107;  Phelps  v.  Call,  7  Ired.,  363;  Ford 
V.  Vandyke,  11  Ired.,  237;  Marth  v.  Brooks,  11  Ired.,  409;  Ormoud  v. 
Moye,  11  Ired.,  564.  Hoke  v.  Carter,  12  Ired.,  334;  Bank  v.  Bank, 
13  Ired.,  75;  Respass  v.  Latham,  Busb.,  138;  Dickey  v.  Johnson,  Busb., 
405;  McCall  v.  Clayton,  Busb.,  423;  Martin  v.  Hayes,  Busb.,  433;  Knight  v. 
R.  R.  Co.,  1  Jon.,  357;  Nichols  v.  Pool,  3  Jon.,  23;  Gregory  v.  Dozier,  6 


18  BILLS,  BONDS  &  PROMISSORY  NOTES.  [Chap.  6. 

Jon.,  4;  Grace  v.  Hannah,  6  Jon.,  94;  Elliot  v.White,  6  Jon.,  98;  McLean  v. 
McDugald,  8  Jon.,  383;  Johnson  v.  Olive,  Winst..,215;  Parker  v.  Stallings, 
Phil.,  590;  Baker  v.  Robinson,  63—191;  Ballentine  v.  HoUoman,  63—475; 
Whitsill  V.  Mebane,  64—345;  Davis  v.  Morgan,  64^570;  Sutton  v.  Owen, 
65—124;  Pace  v.  Roberson,  65—550;  Ransom  v.  Smith,  66—537;  Blackmer 
V.  Phillips,  67—340;  Blount  v.  Windley,  08—1;  Glend  v.  Bank,  70—191; 
Burroughs  v.  Bank,  70—283;  Crawford  v.  Lytic,  70—385;  Burden 
V.  Southerland,  70—538;  Abrams  v.  Cuieton,  74—523;  Etheridge  v.  Vcnoy. 
74__800;  Milter  v.  Tharel,  75—148;  Johnson  v.  Henderson,  76—227; 
Meadows  v.  Cozart,  76— 450 ; Belo v.  Comrs.,  76 — 489;  Kahnweilerv.  Ander- 
son, 78—133;  Henderson  v.  Lemly,  79—169;  Brown  v.  Kinsey,  81—245; 
Hill  V.  Shit-Ids,  81—250;  Jackson  v.  Love,  82 — 405;  Bank  v.  Bynum,  84— 
24;  Pate  v.  Brown,  85—106;  Havens  v.  Potts,  86—31;  Tredwell  v.  Blount, 
86—38;  Pugh  v.  Grant,  86—39;  Roberson  v.  Dunn,  87—191. 

Sec.  42.  Orders  in  writing-;  drawer  or  acceptor  liable 
thereon,  protest  and  notice  thereof  before  action 
against  drawer.      R.  C,  c.  13,  s.  2.  1762,  c.  70,  ss.  3,  4. 

When  any  person,  by  order  in  writing  signed  by  him, 
shall  direct  the  payment  of  any  sum  of  money  in  the 
hands  or  possession  of  any  other  person,  to  the  bearer,  or 
any  person  whatsoever,  the  money  therein  specified  shall, 
by  virtue  thereof,  be  due  and  payable  to  such  person 
to  whom  the  same  is  drawn  payable,  and  may  be  put  in 
suit  against  him  who  shall  draw  the  same,  or  against  the 
person  on  whom  the  same  shall  be  drawn,  after  the  ac- 
ceptance thereof  by  him,  by  whom  the  same  shall  be 
made  payable,  and  damages  may  be  recovered:  Provided, 
that  none  shall  commence  any  action  against  him  who 
shall  give  such  order  for  the  money  therein  mentioned, 
before  the  same  shaU  have  been  first  protested  for  non- 
acceptance,  and  notice  given  thereof  to  the  drawer;  and 
if  suit  shall  be  brought  on  such  order  before  notice  and 
refusal  to  pay  as  aforesaid,  the  plaintiff  shall  be  non- 
suited. 

—V.  Stanton,  1  Hay.,  312  (271);  Bank  v.  Seawell,  2  Hawks,  560;  Bank 
V.  Lane,  3  Hawks,  453;  Taribault  v.  Ely,  2  Dev.,   67;  Bis&ell   v.  Bozman, 

2  Dev.  Bq„  154;  Jordan  v.  Parkington,  4  Dev.,  357;  Spear  and  Palton  v. 
Atkinson,  1  Ired.,  262;  Hubbard  v.  Troy,  2  Ired.,  134;    Moore  v.  Tucker, 

3  Ired.,  347;  Denny  V.  Palmer,  5  Ired.,  610;  Ruuyon  v.  Montfort,  Busb., 
371;  Wiley  v.  Brice,  70 — 422;  Love  v.  .Johnston,  72 — 415;  Folk  v.  Howard, 
72—527;  Long  v.  Stephenson,  72—569;  Mauney  v.  Coit.  80—300;  Cedar 
Falls  Co.  V.  Wallace,  83—325;  Banks  v.  Pinkers,  83—377;  Bank  v. 
Alexander,  84—30;  Witlkowsky  v.  Smith,  84—671. 

Sec.  4.*?.  Days  of  grace  on  bills,  &c.,  except  those  payable 
on  demand.    R.  C,  c.  13,  s.  3.    1848,  c.  9. 
All  bills  of  exchange  payable  within  the  state,  at  sight, 


Chap.  6.]  BILLS,  BONDS  &  PEOMISSORY  NOTES.  19 

or  at  a  future  day  certain,  in  which  there  is  no  express 
stipulation  to  the  contrary,  shall  be  entitled  to  days  of 
grace  as  the  same  are  allowed  by  the  custom  of  merchants 
on  foreign  bills  of  exchange  payable  at  the  expn-ation  of 
a  certain  period  after  date  or  sight:  Provided,  that  no 
days  of  grace  shall  be  allowed  on  any  bill  of  exchange, 
promissory  note,  or  draft  payable  on  demand. 

Jarvis  v.  McMaiu  and  Simmons,  3  Hawks,  10;  Fields  v.  Mallett,  3 
Hawks,  465. 

Sec.  44.  Interest  on  bills,  &c.;  when  to  accrue.  B.  C,  c. 
13,  s.  4.   1786,  c.  348,  s.  3. 

All  bonds,  bills,  notes,  bills  of  exchange,  liquidated  and 
settled  accounts,  shall  bear  interest  from  the  tune  they 
become  due,  provided  such  Uquidated  and  settled  accounts 
be  signed  by  the  debtor,  unless  it  be  specially  expressed 
that  interest  is  not  to  accrue  until  a  time  mentioned  in 
the  said  writings  or  securities. 

Caldwell  v.  Rodman,  5  Jon.,  139;  Yellowly  v.  Comrs.  78—164. 

Sec.  45.  Bills,  &c.,  payable  on  demand  to  bear  interest. 
B.  C,  c.  13,  s.  5.     178G,  c.'248,  s.  4. 

All  bills,  bonds,  or  notes  payable  on  demand,  shall  be 
held  and  deemed  to  be  due  when  demandable  by  the 
creditor,  and  shall  bear  interest  from  the  time  they  are 
demandable,  unless  otherwise  expressed. 

Ormand  v.  Moye,  11  Iix-d.,  564;  Caldwell  v.  Rodman,  5  Jon.,  139. 

Sec.  46.  Contracts  for  delivery  of  articles  bear  interest  as 
moneyed  contracts.  K.  C,  c.  13,  s.  6.  1786,  c.  248, 
s.  5. 

All  securities  for  the  payment  or  delivery  of  specific 
articles  shall  bear  interest  as  moneyed  contracts;  and  the 
articles  shall  be  rated  by  the  jury  at  the  time  they 
become  due. 

Sec.  47.  Bills  of  exchange  bear  interest  from  time  of  pay- 
ment. K.  C,  c.  13.  s.  7,  1828,  c.  3,  s.  1. 
Bills  of  exchange  which  shall  be  drawn  or  indorsed  in  the 
state,  and  shall  be  protested,  shall  carry  interest,  not 
from  the  date  thereof,  but  from  the  time  of  payment 
therein  mentioned. 

Sec.  48.  Damages  on  protested  bills  of  exchange  at  various 
places.  R.  C,  c.  13,  s.  8;  1741,  c.  31;  1796,  c.  464, 
ss.  1,  2.  1828  c.  2,  s.  2;  1840,  c.  1. 

The  damages  on  such  protested  bills  shall  be  as  follows: 


20  BILLS,  BONDS  &  PROMISSORY  NOTES.  [Chap.  6. 

that  is  to  say,  where  the  bill  shall  be  drawn  or  indorsed 
in  this  state  upon  any  person  or  corporation  in  any  other 
of  the  United  States,"  or  in  any  of  the  territories  thereof, 
three  per  cent,  upon  the  principal  sum;  where  such  bill 
shall  be  drawn  or  indorsed  upon  any  person  or  corpora- 
tion in  any  other  place  in  North  America  (excepting  the 
noi-th-west  coast  of  America),  or  in  any  of  the  West 
India  or  Bahama  Islands,  ten  per  cent,  upon  the  principal 
sum;  where  such  bill  shall  be  drawn  or  indorsed  upon 
anv  person  or  corporation  in  the  Island  of  Madeira,  the 
Canaries,  the  Azores,  the  Cape  de  Verd  Islands,  or  in  any 
other  state  or  place  in  Europe  or  South  America,  fifteen 
per  cent,  on  the  principal  sum;  and  where  such  bill  shall 
be  drawn  or  indorsed  on  any  person  or  corporation  in  any 
other  part  of  the  world,  twenty  per  cent,  on  the  principal 
sum. 

Runyon  v.  Latham,  5  Ired.,  551. 

Sec.  49.  Protest  of  notary,  justice  of  peace,  or  clerk  of  a 
court  of  record,  evidence  of  demand.  R.  C,  c.  13,  s.  9. 
1812,  c.  844.  1819,  c.  1003.  1826,  c.  15. 

In  all  actions  wherein  it  may  be  necessary  to  prove  a 
demand  upon,  or  notice  to  the  drawer,  or  indorser  of  a 
bill  of  exchange,  or  promissory  note,  or  other  negotiable 
security;  or  where  it  maybe  necessary  to  prove  a  demand 
upon  the  acceptor  or  drawee  of  a  bill  of  exchange,  in  any 
action  against  the  drawer  or  indorser  thereof,  the  protest 
of  a  notary  public,  or  for  want  of  a  notary  public,  of  a 
justice  of  the  peace  or  clerk  of  a  court  of  record,  setting 
forth  that  he  made  such  demand,  or  gave  such  notice, 
and  the  manner  in  which  he  did  the  same,  shall  he  prima 
facia  evidence  that  such  demand  was  made,  or  notice 
given  in  manner  set  forth  in  the  protest. 

Elliot  V.  While,  6  Jon.,  98. 

Sec.  50.  Indorsers  of  negotiable  securities  liable  as  sureties. 
R.  C,  c.  13.  s.  lO.     1827,  c.  2. 

Whenever  any  bill,  or  negotiable  bond,  or  pi-oraissory 
note,  shall  be  ilidoised,  such  indorsement,  unless  it  be 
otherwise  plainly  expressed  therein,  shall  render  the  in- 
dorser liable  as  surety  to  any  holder  of  such  bill,  bond, 
or  promissory  note;  and  no  demand  on  the  maker  shall 
be  necessary  previous  to  an  action  against  the  indorser: 
Provided,  that  nothing  herein  shall  in  any  respect  apply 
to  bills  of  exchange,  inland  or  foreign. 

Hatcher  v.  McMoriue,  4  Dcv,,  123;  Williams  v.  Irvin,  3  D.  &  B.,  74; 
lugersoU  v.  Long,  4  D.  &  B.,  293;  Topping  v.  Blount,  11  Ired..  62;  Nichols 


Chap.  7.]  BURNING  WOODS.  21 

V.  Pool,  2  Jon.,  23;  Johnsonv.  Hooker,  2  Jon.,  29;  Crawford  v.  Lytle,  70— 
385;  Henderson  v.  Lemly,  79—109;  HofEman  v.  Moore,  83—313. 

Sec.  51.  Bonds  payable  to  clerk,  &c.,  for  benefit  of  suitors, 
suable  in  name  of  state.    R.  C,  c.  13,  s.  11. 

Bonds  and  other  obligations  taken  in  the  course  of  any 
proceeding  in  law,  under  the  direction  of  the  court,  and 
payable  to  any  clerk,  commissioner,  or  officer  of  the 
court,  for  the  benefit  of  the  suitors  in  the  cause,  or  others 
having  an  interest  in  such  obligation,  may  be  put  in  suit 
in  the  name  of  the  state. 

Gotten  ex  parte,  Phil.  Eq.,  79. 


CHAPTER  SEVEN. 
BUKNING  WOODS. 


Section. 

52.  No  person  to  fire  woods  except 

his  own,  and  notice  thereof  to 
be  given. 

53.  Penalty  firty  dollars;  guilty  of  a 

misdemeanor. 


Section. 

54.  Wagoners  not  extinguishing  camp 
fires  liable  to  a  penalty    and 
amount    of    damages. 


Sec.  52.  No  person  to  fire  woods  except  his  own,  and  no- 
tice thereof  to  be  given.    K.  C,  c.  16,  s.  1. 1777,  c.  123, 

s.  2. 

No  person  shall  set  fire  to  any  woods,  except  it  be  his 
own  property;  nor  in  that  case,  without  first  giving  no- 
tice in  writing  to  all  persons  owning  lands  adjoming  to 
the  woodlands  intended  to  be  fired,  at  least  two  days  be 
fore  the  time  of  firing  such  woods,  and  also  taking  effect- 
ual care  to  extinguish  such  fire  before  it  shall  reach  any 
vacant  or  patented  lands  near  to  or  adjoining  the  lands  so 
fired. 

Wright  V.  Tarborough,  N.  C.  T.  R.,  263,  (687);  Tyson  v.  Rasberry, 
1  Hawks.  60;  Averitt  v.  Murrell,  4  Jon.,  322;  Hall  v.  Cranford,  5  Jon.,  3; 
Garrett  v.  Freeman,  5  Jon.,  78;  Roberson  v.  Kirby,  7  Jon.,  477;  Achenbach 
V.  Johnston.  84—264. 


22  BURNT  AND  LOST  RECORDS.      [Chap.  8. 

Sec.  53.  Penalty  fifty  dollars;  guilty  of  a  misdemeanor.  K. 
C,  c.  16,  s.  2.  1777,  c.  133,  s.  1. 

Every  person  wilfully  oflfending  against  the  preceding 
section  shall,  for  every  such  offence,  forfeit  and  pay  to 
any  person  who  will  sue  for  the  same  fifty  dollars,  and  he 
liable  to  any  one  injured  in  an  action,  and  shall  moreover 
be  guilty  of  a  misdemeanor. 

Robeison  v.  Kiiby,  7  Jon.,  477. 

Sec.  54.  Wagoners  not  e.vtingiilshing  camp-fires  liable  to 
a  penalty  and  amount  of  damages.  1865-'0,  c.  38. 

If  any  wagoner  or  other  person  encamping  in  the  open 
air  shall  leave  his  camp  without  totally  extinguishuig  his 
camp-fire,  he  shall  be  liable  to  a  penalty  of  ten  dollars,  to 
be  recovered  by  any  person  suing  for  the  same,  and  shall 
be  further  liable  for  the  full  amount  of  damages  that  any 
individual  may  sustain  by  reason  of  any  fire  gettmg  out 
from  said  camp,  to  be  recovered  by  action  m  the  superior 
court  for  the  county  in  which  said  camp  may  be  situated, 
or  in  which  said  damage  may  be  done:  Provided,  that 
this  section  shall  apply  only  to  the  counties  of  Cumber- 
land, Harnett,  Bladen,  Moore,  Hertford  and  Chowan. 


CHAPTER  EIGHT. 
BUKNT  AND  LOST  EECOEDS. 


SrocTioN. 

5-5.  Copies  of  burnt  or  destroyed  rec- 
ords certified  by  proper  officer, 
to  be  received  in  evidence. 

56.  How    origiual    papers    may    be 

again  recorded  or  registered; 
conveyances  of  real  estate  lost, 
bow  re-surveyed  and  estate  de- 
clared, and  its  effect. 

57.  Copies  of  lost   will  may  be  ad- 

milted  to  probate. 

58.  Copies  of  wills  under  certificate 

of  clerk  of  the  superior  court 
shall  be  competent  evidence; 
letters  testamentary  to  issue. 


Section. 

59.  Contents  of  destroyed  wills,  how 
established. 

60.  Dcstroyi'd  judgments,  how  per- 

petuated. 

61.  Color  of  title,  how  determiiif  d. 

62.  Actions    on     destroyed     official 

bonds,  how  nroseculed. 

63.  Destroyed  witness  tickets,  how 

made  good. 

64.  Lost  conveyances,  how  replaced. 

65.  Records  of  any  court  in,  or  out 

of  the  state  admissible,  to  prove 
existence  and  contents  of  wills, 
deeds,  &c.,  destroyed. 


Chap.  8.]      BUENT  AND  LOST  RECORDS.  23 


Section. 

66.  Copies  of  deeds,  &c.,  mentioned 
in  preceding  section  may  be  re- 
corded. 

07.  Rules  to  be  observed  in  petitions 
and  motions  under  this  chapter. 

68.  Records  and  registries  under  this 
chapter  to  have  tlie  same  force 
and  effect  as  original  registries. 

09.  "Written    evidence    prior  to  de- 


Section. 

struction  of  said  recorded  deed, 
registry,  will,  &c.,  to  be  prima 
facie  evidence  of  its  existence. 

70.  Such  deeds  and  conveyances  to 

be  received  as  prima  facie  evi- 
dence of  the  recitals. 

71.  To  what  records,  &c.,  the  pro- 

visions of  this  chapter  are  ap. 
plicable. 


Sec.  55.  Copies  of  burnt  or  destroyed  records  certified  by 
the  proper  ofllcer,  to  be  received  in  evidence.  1866,  c. 
41,  ss.  1,  2. 

Whenever  the  office  of  any  registry  shall  have  been, 
or  may  be  destroyed  by  fire  or  other  accident,  and  the 
records  and  other  papers  thereof  be  burnt  or  destroyed, 
the  copies  of  all  such  proceedings,  instruments  and  papers 
as  are  of  record  or  registry,  certified  by  the  proper  officer, 
though  without  the  seal  of  office,  shall  be  received  in  evi- 
dence whenever  the  original  or  duly  certified  exemplifi- 
cations would  be.  Such  copies,  when  the  court  shall  be 
satisfied  of  their  genuineness,  may  be  ordered  to  be  re- 
corded or  registered. 

Sec.  56.  How  original  papers  may  be  again  recorded  or 
registered ;  conveyances  of  real  estate  lost,  how  re- 
surveyed  and  estate  declared,  and  its  effect.  1866,  c. 
41,  s.  3. 

All  original  papers,  once  admitted  to  record  or  registry, 
whereof  the  record  or  registry  is  destroyed,  may,  on  mo- 
tion, be  again  recorded  or  registered,  on  such  proof  as 
the  court  shall  require.  Whenever  any  conveyance  of 
real  estate,  or  any  right  or  interest  therein  shall  have 
been  lost,  the  registry  thereof  being  also  destroyed,  any 
person  clauiiing  under  the  same  may  cause  the  bounda- 
ries thereof  tobe  established  in  the  manner  provided  for 
processioning  land,  or  he  may  proceed  in  the  following 
manner  to  estabhsh  both  the  boundaries  and  nature  of 
his  estate:  He  shall  file  his  petition  before  the  clerk  of 
the  superior  court,  setting  forth  the  location  and  bound- 
aries of  his  land,  whose  land  it  adjoins,  and  the  estate 
claimed  therein,  and  praying  to  have  his  own  boundaries 
established,  and  the  nature  of  his  estate  declared.  All 
persons  claiming  any  estate  in  the  premises,  and  those 
whose  lands  adjoin,  shall  be  notified  of  the  proceedings, 
and  thereupon,  unless  they  or  some  of  them  shall,  by 


24  BUENT  AND  LOST  EECORDS.      [Chap.  8. 

answer  on  oath,  deny  the  truth  of  the  matters  alleged,  or 
some  of  them,  the  clerk  of  the  superior  court  shall  order 
a  surveyor  to  ran  and  designate  the  boundaries  of  the 
petitioner's  land,  return  his  survey,  with  the  plot  thereof 
to  court,  which,  when  confirmed,  shall,  with  the  declara- 
tion of  the  court,  as  to  the  nature  of  the  estate  of  the  pe- 
titioner, be  registered  and  have,  as  to  the  persons  notified, 
the  effect  of  a  deed  for  the  same,  executed  by  the  person 
possessed  of  the  same,  next  before  the  petitioner:  Pro- 
vided, that  in  all  cases  wherein  the  process  of  surveying 
shall  be  disputed,  and  the  surveyor  shall  be  forbidden  to 
proceed  by  any  jjerson  interested,  the  same  proceedings 
shall  be  had  as  in  like  cases  of  processioning  land.  The  peti- 
tioner shall  set  forth  the  whole  substance  of  the  convey- 
ance as  truly  and  specifically  as  he  can,  and  if  any  of  the 
persons  notified  shall,  by  answer,  deny  the  truth  thereof, 
the  clerk  of  the  superior  court  shall  transfer  the  issues  of 
fact  to  the  superior  court  at  term,  to  be  tried  as  other 
issues  of  fact  are  requii'ed  by  law  to  be  tried,  and  on  their 
verdict  and  the  pleadings,  the  judge  shall  adjudge  the 
rights  of  the  parties,  and  declare  the  contents  of  the  deed, 
if  any  deed  be  found  by  the  jury,  and  allow  the  registra- 
tion of  such  judgment  and  declaration,  which  shall  have 
the  force  and  effect  of  a  deed. 

Fleming  v.  Roberts,  77 — 415;  Cowles  v.  Harding,  79 — 577. 

Sec.  57.  Copies  of  lost  will  may  l>e  admitted  to  probate. 
1868-'9,  c.  160,  s.  1. 

In  all  counties  where  the  original  wills  on  file  in  the 
office  of  clerks  of  superior  courts,  and  will-books  contain- 
ing copies,  have  been  or  may  be  lost  or  destroyed,  if  the 
executor  or  any  other  person  has  preserved  a  copy  of  a 
will,  (the  origiiial  being  so  lost  or  destroyed,)  with  a  cer- 
tificate appt^juled,  signed  by  a  clerk  of  the  court  in  whose 
office  the  will  was,  or  is  requu-ed  to  be  filed,  and  stating 
tliat  said  copy  is  a  correct  one,  such  copy  may  be  ad- 
mitted to  proliate,  under  the  same  rules  and  in  the  same 
manner  as  now  prescribed  by  law  for  proving  wills;  and 
the  proceedings  in  such  cases  shall  be  the  same  as  though 
s\ich  copy  was  the  original  offered  for  the  first  time  for 
probate,  except  that  the  clerk  Avho  signed  such  certificate 
shall,  on  oath,  acknowledge  his  signature,  or  in  case  it 
shall  appear  that  said  clei'k  has  died  or  left  the  state,  then 
liis  signature  sliaJlbe  proven  by  a  competent  witness;  and 
the  witness  or  witnesses  to  the  original,  who  may  be  ex- 
amined, shall  be  required  to  swear  that  he  or  they  signed 
in  the  presence  of  the  testator  and  by  his  direction  a 


Chap.  8.]    BURNT  AND  LOST  EECORDS.  25 

paper  writing  purporting  to  be  his  last  will  and  tes- 
tament. 

Sec.  58.  Copies  of  wills  under  certificate  of  clerk  of  the 
superior  court  shall  be  competent  evidence;  letters 
testamentary  to  issue.     186S-'9,  c,  IGO,  s.  2. 

In  any  action  or  proceeding  at  law,  wherein  it  may  be- 
come necessary  to  introduce  such  will  to  establish  title, 
or  for  any  other  purpose,  a  copy  of  the  will  and  of  the 
record  of  the  probate,  with  a  certificate  signed  by  the 
clerk  of  the  superior  court  for  the  county  where  the  will 
may  be  recorded,  stating  that  said  record  and  copy  are 
full  and  correct,  shall  be  admitted  as  competent  evidence; 
and  when  a  copy  of  a  will  shall  have  been  admitted  to 
probate,  the  clerk  of  the  superior  court  shaU  thereupon 
issue  letters  testamentary. 

Sec.  59.  Contents  of  destroyed  wills,  how  established. 
1866,  c.  41,  s.  4. 

Any  person  desirous  of  establishing  the  contents  of  a 
will  destroyed  as  aforesaid,  there  being  no  copy  thereof, 
may  file  his  petition  in  the  office  of  the  cleik  of  the 
superior  court,  setting  forth  the  entire  contents  thereof, 
accoi'ding  to  the  best  of  his  knowledge,  information  and 
belief,  and  all  persons  having  an  interest  under  the  same 
shall  be  made  parties,  and  if  the  truth  of  such  petition  be 
denied,  the  issues  of  fact  shall  be  transferred  to  the  supe- 
rior court  at  term  for  trial  by  a  jury,  whether  the  will 
was  recorded,  and  if  so  recorded,  the  contents  thereof, 
and  the  declarations  of  the  judge,  shall  be  recorded  as  the 
will  of  the  testator;  any  devisee  or  legatee  shall  be  a 
competent  witness  as  to  the  contents  of  every  part  of  said 
Avill,  except  such  as  may  concern  his  own  interest  in  the 
same. 

Sec.  60.  Destroyed  judgments,  how  perpetuated.  1866, 
c.  41,  s.  5. 

Every  pei'son  desirous  of  perpetuating  the  contents  of 
any  destroyed  judgments,  order  or  proceedings  of  court, 
or  any  paper  admitted  to  record  or  registration,  or  di- 
rected to  be  filed  for  safe  keeping,  other  than  wills  or 
conveyances  of  real  estate,  or  some  right  or  interest 
therein,  or  any  deed  or  other  instrument  of  writing,  re- 
quired to  be  recorded  or  registered  but  not  having  been 
recorded  or  registered,  it  being  competent  to  register  or 
record  said  deed  or  other  instrument  at  the  time  of  its 
loss  or  destruction,  may  file  his  petition  in  the  court  hav- 

2 


26  BURNT  A.ND  LOST  RECORDS.     [Chap.  8. 

ing  jurisdiction  of  like  matters  with  the  original  pro- 
ceeding, setting  forth  the  suhstance  of  the  whole  record, 
deed,  proceeding,  or  paper,  which  he  desires  to  per- 
petuate, and  if,  ou  the  hearing,  the  court  shall  declare 
the  existence  of  such  record,  deed,  or  proceedmg,  or 
paper  at  the  time  of  the  hurning  of  the  office  wherein 
the  same  was  lodged  or  kept,  or  other  destruction  there- 
of, and  that  the  same  was  there  destroyed,  and  shall  de- 
clare the  contents  thereof,  such  declaration  shall  be  re- 
corded or  registered,  or  filed,  according  to  the  nature  of 
the  paper  destroyed. 

Sec.  61.    Color  of  title,  liow  determined.     1866,  c.  41, 
s.  6. 

Every  person  who  shall  have  been  in  the  continual, 
peaceable  and  quiet  possession  of  land,  tenements,  or 
hereditaments,  situated  in  the  county,  claiming,  usmg 
and  occupying  them  as  his  own,  for  the  space  of  seven 
years,  under  "known  boundaries,  the  title  thereto  being 
out  of  the  state,  shall  be  deemed  to  have  been  lawfully 
possessed,  under  color  of  title,  of  such  estate  therein  as 
has  been  claimed  by  him  during  his  possession,  although 
he  may  exhibit  no  conveyance  therefor:  Provided,  that 
such  possession  shall  have  commenced  before  the  destruc- 
tion of  the  registry  office,  or  other  destruction  as  afore- 
said, and  also  that  any  such  person,  or  any  person  claun- 
ing  by,  through  or  under  him,  will  make  affidavit  and 
produce  such  proof  as  shall  be  satisfactory  to  the  court 
that  the  possession  was  rightfully  taken;  and  if  taken 
under  a  written  conveyance,  that  the  registry  thereof 
was  destroyed  by  fire  or  other  means,  or  was  destroyed 
before  registry  as  aforesaid,  and  that  neither  the  original, 
nor  any  copy  thereof,  is  in  existence.  Provided  further, 
that  such  presumption  shall  net  arise  against /ernes  co- 
vert, infants,  persons  of  non-sane  memory,  and  persons 
residing  out  of  the  state,  who  were  such  at  the  time  of 
possession  taken,  and  were  not  therefore  barred,  nor  were 
so  barred  at  the  time  of  the  burning  of  the  office  or  other 
destruction. 

Hill  V.  Overton,  81—393. 

Sec.  62.    Action   on  destroyed  official  bonds,  how  prose- 
cuted.    1866,  c.  41,  s.  7. 

Actions  on  official  or  other  bonds  lodged  in  any  office 
which  are  destroyed  with  the  registry  thereof,  may  be 
prosecuted  by  petition  against  the  principal  and  sureties 


Chap.  8.]    BUENT  AND  LOST  EECOEDS.  27 

thereto,  and  tJie  proceedings  shall  be  as  in  the  former 
coarts  of  equity. 

Sec.  63.  Destroyed  -wTltness  tickets,  liow  made  good. 
18G0,c.  41,  s.  8. 

The  court  having  jurisdiction  of  the  action  may  allow 
other  witness  tickets  to  be  filed  in  place  of  such  as  may 
be  destroyed,  upon  the  oath  of  the  witness  or  other  satis- 
factory proof. 

Sec.  64.  Lost  conveyances,  how  replaced.  1866,  c.  41,  s.9. 

Where  any  conveyance  executed  by  any  person,  sheriff, 
clerk  and  master,  or  commissioner  of  court  has  been  lost, 
and  registry  thereof  destroyed  as  aforesaid,  and  there  is 
no  copy  thereof,  such  persons,  whether  in  or  out  of  of- 
fice, may  execute  another  of  like  tenor  and  date,  reciting 
therein  that  the  same  is  a  duplicate,  and  such  deed  shall 
be  evidence  of  the  facts  therein  recited,  in  all  cases 
wherein  the  parties  thereto  are  dead,  or  are  incompetent 
witnesses  to  prove  the  same,  to  the  extent  as  if  it  was 
the  original  conveyance. 

Sec.  66.  Records  of  any  court  in  or  out  of  tlie  state  ad- 
missible to  prove  existence  and  contents  of  wills, 
deeds,  &c.,  destroyed.    1866,  c.  41,  s.  10. 

The  records  of  any  court  in  or  out  of  the  state,  and  all 
transcripts  of  such  records,  and  the  exhibits  filed  there- 
with in  any  case,  shall  be  admissible  to  prove  the  exist- 
ence and  contents  of  all  deeds,  wills,  conveyances,  depo- 
sitions and  other  papers,  copies  whereof  are  therein  set 
forth  or  exhibited  in  all  cases  where  the  records  and  reg- 
istry of  such  as  were  or  ought  to  have  been  recorded  and 
registered,  or  the  originals  of  such  as  were  not  proper  to 
be  recorded  or  registered,  have  been  destroyed  as  afore- 
said, although  such  transcripts  or  exhibits  may  have 
been  informally  certified;  and  when  offered  in  evidence 
shall  have  the  like  effect  as  though  the  transcript  or 
record  was  the  record  of  the  court  whose  records  are  de- 
stroyed, and  the  deeds,  wills  and  conveyances,  deposi- 
tions and  other  papers  therein  copied  or  therewith  exhib- 
ited, were  original. 

Sec.  66.  Copies  of  deeds,  &c.,  mentioned  in  preceding 
section  may  be  recorded.    1866,  c.  41,  s.  11. 

The  copies  aforesaid  of  all  such  deeds,  wills,  convey- 
ances and  other  instruments  proper  to  be  recoi'ded  or 
registered,  as  are  mentioned  in  the  preceding  section, 


28  BUENT  AND  LOST  EECOEDS.    [Chap.  8. 

may  be  recorded  or  registered  on  application  to  the  clerk 
of  the  superior  court,  and  due  proof  that  the  original 
thereof  was  genuine. 

Sec.  67.  Rules  to  be  observed  in  petitions  and  motions 
under  this  cliapter.  1866,  c.  41,  s.  12.  1874:-'5,  c.  51. 
1874:-'5,  c.  234,  s.  3. 

The  following  rules  shall  be  observed  in  petitions  and 
motions  under  this  chapter:  The  facts  stated  m  every 
petition  or  motion  shall  be  verified  by  affidavit  of  the 
petitioner  that  they  are  true  according  to  the  best  of  his 
knowledge,  information  and  belief;  the  instrument  or 
paper  sought  to  be  established  by  any  petition  shall  be 
fully  set  forth  in  its  substance,  and  its  precise  language 
shall  bp  stated  Avhen  the  same  is  remembered.  All  per- 
sons interested  in  tlie  prayers  of  the  petition  or  decree, 
shall  be  made  parties.  No  petition  to  declare  the  con- 
tents of  a  deed  or  wiU,  or  any  matter  of  record,  shall  be 
filed  but  within  five  years  next  after  the  loss  or  destruc- 
tion thereof:  Provided,  that  infants,  femes  coverts,  per- 
sons of  non-sane  memory  and  non-residents,  may  file 
such  petition  within  one  year  after  the  disability  is  re- 
moved. Petitions  to  establish  a  record  of  any  court  shall 
be  filed  at  term  in  the  superior  court  of  the  county 
where  the  record  is  sought  to  be  estabhshed.  Other 
petitions  may  be  filed  in  the  office  of  the  clerk  of  the 
superior  court.  The  costs  of  every  action  under  this 
chapter  shall  be  paid  as  the  court  may  decree.  Appeals 
shall  be  allowed  as  in  all  other  cases,  and  where  the  error 
alleged  shall  be  an  erroneous  finding  by  the  superior 
court  at  term,  of  a  matter  of  fact,  the  same  may  be 
removed  on  appeal  to  the  supreme  court,  and  the  proper 
■judgments  directed  to  be  entered  below.  And  it  shall 
be  presumed  that  any  order  or  record  of  the  court  of 
pleas  and  quarter  sessions,  which  was  made  and  has 
been  lost  or  destroyed,  was  made  by  a  legally  consti- 
tuted court,  and  the  requisite  number  of  justices,  with- 
out naming  said  justices. 

Flemming  v.  Roberls,  77—415;  Dail  v.  Sugg.  85—104. 

See.  68.  Records  and  registries  under  this  chapter  to 
have  the  same  force  and  eftcct  as  original  registries. 
1866,  c.  41,  s.  14. 

The  records  and  registries  allowed  bv  the  court  in  pur- 
suance of  this  chapter  shall  have  the  same  force  and 
effect  as  original  records  and  registries. 


Chap.  8.]    BURNT  AND  LOST  RECORDS.  29 

Sec.  69.  Written  evidence  prior  to  destruction  of  said  re- 
corded deed,  registry,  will,  &c.,  to  be  iirima  facie  evi- 
dence of  its  existence.     1871,  c.  64,8.1. 

The  recitals,  reference  to,  or  mention,  of  any  decree, 
order,  judgment  or  other  record  of  any  court  of  record 
of  any  county  in  which  the  court-house,  or  records  of 
said  courts,  or  both,  have  been  destroyed  by  tire  or 
otherwise,  contained,  recited  or  set  forth  in  any  deed  of 
conveyance,  paper  writing,  or  other  bona  fide  written 
evidence  of  title,  executed  prior  to  the  destruction  of  the 
court-house  and  records  of  said  county,  by  any  executor 
or  administrator  with  a  will  annexed,  or  by  any  clerk 
and  master,  superior  court  clerk,  clerk  of  the  court  of 
pleas  and  quarter  sessions,  sheriff,  or  other  officer,  or 
commissioners  appointed  by  either  of  said  courts,  and 
authorized  by  law  to  execute  said  deed  or  other  paper 
writing,  shall  be  deemed,  taken  and  recognized  as  true  in 
fact,  and  shall  be  prima  facie  evidence  of  the  existence, 
validity  and  binding  force  of  said  decree,  order,  judg- 
ment or  other  record  so  referred  to  or  recited  in  said 
deed,  or  paper  writing,  and  shall  be  to  all  intents  and 
purposes  binding  and  valid  against  all  persons  mentioned 
or  described  in  said  instrument  of  writing,  deed,  &c.,  as 
purporting  to  be  parties  thereto,  and  against  all  persons 
who  were  parties  to  said  decree,  judgment,  order  or 
other  record  so  referred  to  or  recited,  and  against  all  per- 
sons claiming  by,  through  or  under  them  or  either  of 
them. 

Bail  V.  Sugg,  85—104. 

Sec.  70.  Sucli  deeds  and  conveyances  to  be  received  as 
prima  facie  evidence  of  tbe  recitals.     1870-'71,  c.  86, 

s.  2. 

Said  deed  of  conveyance,  or  other  paper  writing,  ex- 
ecuted as  aforesaid,  and  registered  according  to  law,  shall 
be  allowed  to  be  read  in  any  suit  now  pending  or  which 
may  hereafter  be  instituted  in  any  court  of  this  state,  as 
prima  facie  evidence  of  the  existence  and  validity  of  the 
decree,  judgment,  order,  or  other  record  upon  which  the 
same  purports  to  be  founded,  without  any  other  or  fur- 
ther restoration  or  re-instatement  of  said  decree,  order, 
judgment,  or  record,  than  is  contained  in  this  chapter. 

Dail  V.  Sugg,  85—104. 


30      CLERKS  OF  THE  SUPERIOR  COURT.    [Chap.  9. 

Sec.  71.  To  wliat  records,  &c.,  the  provisions  of  this  chap- 
ter are  applicable.  1871-'2,  c.  64,  s.  2.  1874-'5,  c. 
254,  s.  2. 

This  chapter  shall  extend  to  records  of  any  court 
which  has  been,  or  may  be  destroyed  by  fire  or  otherwise, 
and  to  any  deed  of  conveyance,  paper  writing,  or  other 
bona  fide  evidence  of  title  executed  before  the  destruc- 
tion of  said  records. 

Bail  V.  Sugg,  85—104 


CHAPTER  NINE. 
CLERKS  OF  THE  SUPEEIOR  OOUET. 


Section. 

72.  Bond  of  clerk.  ^ 

73.  Bond,  how  approved,  &c. 

74.  Qualification  of  clerks. 

75.  May  appoint  deputies,  &c. 

76.  Failure  to  give  bond,  &c. 

77.  Renewed  annually;  clerk  to  pro- 

duce receipts  for  all  public 
moneys  paid  before  renewing. 

78.  Clerks  may  resign. 

79.  Penalty  for  acting  without  qual- 

ifying. 

80.  Office,  where  to  be  kept,  when 

to  open. 

81.  To  receive  official  papers,  &c. 
83.  To  keep  record,  &c. 

83.  Books  to  be  kept  by  clerks. 

84.  Books  to  be  furnished  by  board 

of  commissioners. 

85.  Money  judgments  of  clerk  to  be 

entered  on  judgment  docket. 

86.  Papers  in  each  action  to  be  kept 

separate  and  filed  together. 

87.  Clerks  going  out  of  office,  and 

having  failed  to  perform  their 
duties,  the  court  may  cause 
them  to  be  done,  and  recover 
the  amount  paid  for  such  ser- 
vice. 


Section. 

88.  Solicitor  to  examine  records. 

89.  Superior  court  clerk  to  certify 

to  secretary  of  state  names  of 
appointees  to  fill  vacancies  in 
office  of  justice  of  the  peace, 
&o. 

90.  To  make  annual  rcport.s  of  all 

public  funds  which  come  into 
their  hands. 

91.  To  be  approved  and  registered. 
93.  Failure  to  report. 

93.  The  duties  of  clerk  of  the  super- 

ior courts  in  relation  to  bills  Of 
cost;  clerks  to  insert  detailed 
items. 

94.  Statement  of  costs  to  be  made 

in  thirty  days. 

95.  Clerks  to  keep  an  itemized  state- 

ment of  all  fines  received  by 
them,  and  to  properly  account 
for  the  same. 

96.  Fines.  &c.,  to  be  paid  to  county 

treasurer  within  sixty  days; 
treasurer  to  keep  an  itemized 
account,  &c. 

97.  Certified  statement  of  account  to 

be  filed  with  superior  court 
clerk. 


Chap.  9.]  CLERKS  OF  THE  SUPERIOE  COURT.   31 


Section. 

98.  Fines,  &c.,  heretofore  collected, 

to  be  paid  to  tlie  treasurer. 

99.  Fines,  &o.,  appropriated  to  tlie 

common  schools. 

100.  Day   of   issuing  process   to   be 

noted  thereon;  sheriff  to  en- 
dorse day  of  receiving,  &c. 

101.  Failure  to  perform  duty  a  mis- 

demeanor. 
103.  OtEce   of    probate  judge  abol- 
ished. 

103.  Clerks  of    the  superior  court; 

their  jurisdiction. 

104.  Disqualification  to  act. 

105.  Waiver  of  disqualification. 

106.  Removal  of  proceedings. 

107.  Commissioner      appointed      to 

audit  accounts;  approval  of 
judge  of  superior  court ;  record 
made  by  clerk  of  superior  court. 

108.  Enumeration  of  powers. 

109.  How  party  may  appear. 

110.  Clerk  not  to  act  as  attorney,  &o. 

111.  Cli'rk  must  file  papers. 

112.  Eecords  to  be  kept  by  clerk. 

113.  Books  to  be  f  uruisbed  by  board 

of  commissioners;  to  be  in- 
dexed. 


Section. 

114.  Clerks  required   to  keep  open 

oflice  for  probate  business. 
11.5.  Forfeiture  of  office  for  failure. 

1 16.  Issues  of  fact  joined  before  the 

clerk  to  be  transferred  to  the 
superior  court ;  appeals  shall  lie 
to  the  judge. 

117.  Lawful  to  deposit  mortgage  in 

lieu  of  prosecution  bond. 

118.  Executors,  &c.,  and  officers  may 

execute  mortgage  in  lieu  of 
bond. 

119.  Additional  security  may  be  re- 

quired. 

130.  Any  person  may  execute  mort- 

gage in  lieu  of  bond ;  proviso. 

131.  Affidavit  of  value   required  ia 

certain  cases. 
123.  Clerk  may  deposit  mortgage. 

133.  Punishment  of  the  clerk  of  the 

superior  court  on  conviction  of 
an  infamous  crime. 

134.  Going  out  of  office,  to  transfer 

records  to  successor;  judge 
may  give  order  for  delivery  of 
records,  &c. 


Sec.  72.  Bond  of  clerk.    C.  C.  P.,  s.  137. 

At  the  first  meeting  of  the  board  of  commissioners  of 
each  county  after  the  election  or  appointment  of  any 
clerk  of  a  superior  court  it  shall  be  the  duty  of  the  clerk 
to  deliver  to  such  commissioners  a  bond  with  sufficient 
sureties,  to  be  approved  by  them,  in  a  penalty  of  ten 
thousand  dollars,  payable  to  the  state  of  North  Carolina, 
and  with  a  condition  to  be  void,  if  he  shall  account  for, 
and  pay  over,  according  to  law,  all  moneys  and  effects 
which  have  come  or  may  come  into  his  hands,  by  virtue 
or  color  of  his  office,  or  under  an  order  or  detiree  of  a 
judge,  even  though  such  order  or  decree  be  void  for  want 
of  jurisdiction  or  other  irregularities,  and  shall  diligently 
preserve  and  take  care  of  all  books,  records,  papers  and 
property,  which  have  come,  or  may  come  into  his  posses- 
sion, by  virtue  or  color  of  his  office,  and  shall  in  all  things 
faithfully  perform  the  duties  of  his  office  as  they  are,  or 
thereafter  shall  be  prescribed  by  law.     Each  surety  shall 


32      CLERKS  OF  THE  SUPERIOE  COURT.   [Chap.  9 

take  and  subscribe  an  oath,  before  the  register  of  deeds, 
that  he  is  worth  a  certain  sum,  which  shall  not  be  less 
than  one  thousand  dollars  over  and  above  all  his  debts 
and  liabilities  and  his  homestead  and  personal  property 
exemption,  and  the  sum  thus  sworn  to  shall  not  be  less 
in  the  aggi-egate  than  the  penalty  of  the  bond. 

Ex  parte  Daughtry,  6  Ired.,  155;  Wilmington  v.  Nutt,  78—177;  Buck- 
man  V.  Com'rs,  80—121;  Wilmington  v.  Nutt,  80—265;  Saunders  v.  Gat- 
ling,  81—398;  Clark  t.  Carpenter,  81—309;  Morgan  v.  Bunting,  86—66; 
Rogers  v.  Odom,  86—433. 

Sec.  73.  Bond,  bow  approved,  &c.    C.  C.  P.,  s.  138. 

The  approval  of  said  bond  by  the  board  of  commission- 
ers, or  a  majority  of  them,  shall  be  recorded  by  their 
clerk.  Any  commissioner  approving  a  bond  which  he 
knows  or  believes  to  be  insufficient,  or  of  the  insufficiency 
of  which  he  has  reasonable  notice,  shall  be  personally 
liable  as  if  he  were  a  surety  thereto.  The  said  bond  shall 
be  acknowledged  by  the  parties  thereto,  or  proved  by  a 
subscribing  witness,  beJ'ore  the  clerk  of  said  board  of  com- 
missioners, or  their  presiding  officer,  registered  in  the 
register's  office  in  a  separate  book  to  be  kept  by  him  for 
the  registration  of  official  bonds:  and  the  original,  with 
the  approval  thereof  endorsed,  deposited  with  the  register 
for  safe-keeping.  The  like  remedies  shall  be  had  upon 
said  bond  as  are  or  may  be  given  by  law  on  official  bonds. 

Judges  V.  Williams,  1  Dev.,  436;  State  v.  Ehringhaus,  Sired.,  7;  State 
V.  Gaines,  8  Ired.,  168;  State  v.  Biggs,  1  Jon.,  364;  White  v.  Smith,  3  Jon,, 
4;  Richardson  v.  Smith,  2  Jon.,  8;  Hunter  v.  Routlcge,  6  Jon.,  216;  Short 
V.  Currie,  8  Jon.,  43;  Erwin  v.  Lowrance,  64 — 483;  Mclntyre  v.  Merritt, 
65— 558 ;  Cooper  V.  Williams,  75—94;  Havens  v.  Lathene,  75—505;  Cox  v. 
Blair,  76—78;  Wilmington  v.  Nutt,  78—177;  Gregory  v.  Morisey,  79—559; 
Wilmington  v.  Nutt,  80—265;  Curtis'  Heirs,  82—435. 

Sec.  74.    Qualification  of  clerks.    C.  C.  P.,  s.  139 

The  clerks  of  the  superior  court,  before  entering  on  the 
duties  of  their  office,  shall  take  and  subscribe  before  some 
officer  authorized  by  law  to  administer  an  oath,  the  oaths 
prescribed  by  law,  and  file  such  oaths  with  the  register  of 
deeds  for  the  county. 

Sec.  75.    May  appoint  deputies,  &c.    K.  C,  c.  19,  s.   15. 
1777,  c.  115,  s.  86. 

Clerks  of  the  superior  court  may  appoint  depnties,  who 
shall  take  and  subcribe  the  oath  prescribed  in  the  preced- 
ing section. 

Shepherd  v.  Lane,  3  Dev.,  148;  Burke  v.  Elliott,  4  Ired.,  355;  Sudderclh 
V.  Smyth,  13  Ired.,  453. 


Chap.  9.]   CLEEKS  OF  THE  SUPERIOR  COURT.      33 

Sec.  76.    Failure  to  give  bond,  &c.    C.  C.  P.,  s.  140. 

In  case  any  clerk  shall  fail  to  give  bond  and  qualify  as 
above  directed,  tlie  presiding  officer  of  the  board  of  com- 
missioners of  his  county  shall  immediately  mtorm  the 
resident  judge  of  the  judicial  district  thereof,  who  shall 
thereupon  declare  the  office  vacant  and  fill  the  same,  and 
the  appointee  shaU  give  bond  and  qualify  as  above  di- 
rected. 

Buckman  v.  Com'rs,  80—131. 

Sec.  77.  Renewed  annually;  clerk  to  produce  receipts 
for  all  public  moneys  paid  before  renewing.  K.  C,  c. 
19  s.  12.  1793,  c.  384,  s.  4.  1806,  c.  699.  s.  1. 
1819,  c.  990.    1874-'5,  c.  151.    187G-'7,  c.  376. 

The  clerks  of  the  superior  court  shall  renew  their  bonds 
for  the  faithful  discharge  of  their  duties  m  office,  with 
good  and  sufficient  sureties,  annually,  on  the  first  Mon- 
day of  December;  and  such  as  shall  neglect  to  renew 
their  bonds  at  the  time  before  mentioned,  or  give  other 
and  better  sureties  when  judged  necessary  by  the  board 
of  county  commissioners,  shall  be  considered  as  having 
forfeited  their  offices:  Provided  that  no  clerk  shall  be 
permitted  to  renew  his  bond  unless  he  shall  produce  trom 
the  treasurer,  state  and  county,  receipts  in  full  of  all 
moneys  by  him  received  for  the  use  of  the  state  and 
county,  for  which  he  shall  have  been  accountable. 

Oats  V.' Bryan,  3  Dcv.,  451;  Hunter  v.  Routlege,  6  Joa.,  316;  Moore  v. 
Boudinot,  64—190. 

Sec.  78.    Clerks  may  resign.    Const.,  Art.  IV.,  s.  29. 

Any  clerk  of  the  superior  court  may  resign  his  office  to 
the  judge  of  the  superior  court,  residing  in  the  district  in 
which  is  situated  the  county  of  which  he  is  clerk,  and 
said  judge  shall  fiU  the  vacancy. 

Sec   79.    Penalty  for  acting  without  qualifying.    K.  C,  c. 
19,  s.  16.     1777,  c.  115,  ss.  4,  61.     1827,  c.  9,  s.  5. 

If  any  clerk  shall  enter  on  the  duties  of  his  office,  be- 
fore he  executes  and  dehvers  to  the  authority  entitled  to 
receive  the  same,  the  bond  required  by  law,  he  shall  be 
guilty  of  a  misdemeanor. 

Sec.  80.    Office,  where  to  be  kept,  when  to  be  open.   C.  C. 
P.,  s.  141. 

He  shall  have  an  office  in  the  court-house  or  other  place 
provided  by  the  board  of  commissioners,  in  the  county 
town  of  his  county.     He  shaU  give  due  attendance,  m 


34      CLEEKS  OF  THE  SUPERIOR  COURT.    [Chap.  9. 

person  or  b  t  deputy,  at  his  office  dail}',  Sundays  and  hol- 
idays excepted,  from  nine  o'clock,  a.  m.,  to  three  o'clock, 
p.  ni.,  and  longer  when  necessary,  for  the  dispatch  of 
business. 

Shepherd  v.  Lane,  2  Dev.,  148;  Burke  v.  EUiolt,  4  Ired.,  355;  Suddereth 
V.   Smytli,  13  Ired.,   453;  People  v.   Heaton,   77—18;  State  v.   Norman, 

83—087. 

Sec.  81,    To  receive  official  papers,  &c.    C.  C.  P.,  s.  142. 

Immediately  after  he  shall  have  given  bond  and  quah- 
fied  as  aforesaid,  he  shall  receive  from  the  late  clerk  of 
the  superior  court  all  the  records,  books,  papers,  moneys 
and  property  of  his  office,  and  give  receipts  for  the  same, 
and  if  any  clerk  shall  refuse,  or  fail  within  a  reasonable 
time  after  demand  to  deliver  such  records,  books,  papers, 
moneys  and  property,  he  shall  be  liable  on  his  official  bond 
for  the  value  thereof,  and  be  guilty  of  a  misdemeanor. 

Foster  v.  Woodfin,  65 — 29;  Gregory  v.  Morrisy,  79 — 559. 

Sec.  82.    To  keep  record,  &c.    C.  C.  P.,  s.  143.     1868-»9, 
c.  159,  s.  4. 

He  shall  be  furnished  with  the  requisite  stationery  and 
furniture,  for  official  use,  by  the  board  of  commissioners. 
He  shall  keep  in  bound  volumes  a  complete  and  faithful 
record  of  all  his  official  acts,  and  give  copies  thereof  to 
all  persons  desiring  them,  on  payment  of  the  legal  fees. 
He  shall  be  answerable  for  all  records  belonging  to  his 
office,  and  all  papers  filed  in  the  court,  and  they  shall  not 
be  taken  from  his  custody,  unless  by  special  order  of  r.he 
court,  or  on  the  written  consent  of  the  attorneys  of  rec- 
ord of  all  the  parties;  but  parties  may  at  aU  times  have 
copies  upon  paying  the  clerk  therefor. 

Sec.  83.    Books  to  be  kept  by  clerks.    C.  C.  P.,  s.  144. 
1868-'9,  c.  159,  s.  1. 

Each  clerk  shall  keep  the  following  books: 

(1)  A  docket  of  all  writs,  summons  or  other  original 
process  issued  by  him,  or  returned  to  his  office,  which  are 
made  returnable  to  a  regular  term  of  the  supei'ior  court; 
this  docket  shall  contain  a  brief  note  of  every  proceeding 
whatever  in  each  action,  up  to  the  final  judgment  inclu- 
sive. 

(2)  A  judgment  docket  in  which  the  substance  of  the 
judgment  shall  be  recorded,  and  every  proceeding  subse- 
quent thereto,  noted. 

Dail  V.  Sugg,  85—104. 


Chap.  9.]   CLERKS  OF  THE  SUPERIOR  COURT.      35 

(3)  A  docket  of  all  issues  of  fact  joined  upon  the  plead- 
ings, and  of  all  other  matters  for  hearing  hef ore  the  judge 
at  a  regular  term  of  the  court,  a  copy  of  which  shall  be 
furnished  to  the  judge  at  the  commencement  of  each 

(4)' A  direct  and  reverse  alphabetical  index  of  all  final 
judgments  in  civil  actions  rendered  in  the  court,  with  the 
dates  and  numbers  thereof,  and  also  of  all  final  judgments 
rendered  in  other  courts  and  authorized  by  law  to  be 
entered  on  his  iudgmeut  docket. 

(5)  A  docket  of  all  criminal  actions,  contammg  a  note 
of  every  proceeding  in  each. 

(6)  A  minute  docket,  in  which  shall  be  entered  a  record 
of  all  proceedings  had  in  the  court  during  term,  in  the 
order  in  which  they  occur,  and  such  other  entries  as  the 
judge  may  direct  to  be  made  therein. 

(7)  A  docket  of  all  writs,  summons,  petitions,  ot  other 
original  process  issued  by  him,  or  returnable  to  his  office, 
and  not  returnable  to  a  regular  term;  this  docket  shall 
contain  a  brief  note  of  every  proceeding,  up  to  the  final 
judgment  inclusive. 

(8)  A  minute  docket,  in  which  shall  oe  entered  a  record 
of  all  proceedings  had  before  the  clerk,  in  actions  or  pro- 
ceedings not  returnable  to  a  regular  term  of  the  com-t. 

Norwood  V.  Tliorp,  CI— 683;  Dail  v.  Sugg,  85—104. 

Sec.  84.  Books  to  be  furnished  by  board  of  commissioners. 
C.  C.  P..  s.  145. 

The  books  specified  in  the  preceding  section  shall  be  sup- 
plied to  the  clerks  of  the  several  counties  by  the  board  of 
commissioners  of  the  respective  counties,  at  the  expense 
of  the  county. 

Sec.  85.  Moneyjudgmentsof  clerktobe  entered  on  judg- 
ment docket. 

Judgments  for  money,  rendered  by  the  clerk,  shall  be 
entere"d  on  the  judgment  docket  of  the  superior  court,  and 
shall  have  the  same  effect  as  to  lien,  from  the  time  of 
docketing,  as  if  they  had  been  taken  in  term  time. 

Sec.  86.  Papers  In  each  action  to  be  kept  separate,  and 
filed  together.    C.  C.  P.,  s.  146. 

The  clerk  shall  keep  the  papers  in  each  action  in  a  sep- 
arate roll  or  bundle,  and  at  its  termination  attach  them 
together,  properly  labeled,  and  file  them  in  the  order  of 
the  date  of  the  final  judgment. 


36      CLERKS  OF  THE  SUPEEIOR  COURT.    [Chap.  9. 

Sec.  87.  Clerks  going-  out  of  office,  anrt  having  failed  to 
perform  their  duties,  the  court  may  cause  them  to  he 
done,  and  recover  the  amount  paid  for  such  service. 
R.  C,  c.  19,  s.  19.    1844,  c.  5,  s.  6. 

Whenever,  upon  the  death  oi'  resignation,  removal 
from  office,  or  at  the  expiration  of  his  term  of  office,  any 
clerk  shall  have  failed  to  discharge  any  of  the  duties  of 
his  office,  the  court,  if  practicable,  shaU  cause  the  same 
to  be  performed  by  another  person,  who  shall  receive  for 
such  services,  and  as  a  comjDensation  therefor,  the  fees 
allowed  by  law  to  the  clerk;  and  such  portion  thereof  as 
may  be  paid  by  the  county,  may  be  recovered  back  by 
the  county,  by  suit  on  the  official  bound  of  the  default- 
ing clerk,  to  be  brought  on  the  relation  of  the  board  of 
commissioners  of  the  county. 

Sec.  88.  Solicitor  to  examine  records.    C.  C.  P.,  s.  147. 

At  every  regular  term  of  the  superior  court,  the  sohci- 
tor  for  the  judicial  district  shall  inspect  the  office  of  the 
clerk  and  report  to  the  court  in  writing.  If  any  clerk, 
after  being  furnished  with  the  necessary  books,  shall  fail 
to  keep  them  up,  as  required  by  law,  he  shall  be  guilty  of 
misdemeanor,  and  the  sohcitor  shall  cause  him  to  be 
prosecuted  for  the  same.  If  any  solicitor  shall  fail  or 
neglect  to  perform  the  duty  hereby  imposed  on  him,  he 
shaU  be  liable  to  a  penalty  of  five  hundred  dollars  to  any 
person  who  shall  sue  for  the  same. 

Sec.  89.  Superior  court  clerk  to  certify  to  secretary  of 
state  names  of  appointees  to  fill  vacancies  in  office  of 
justice  of  the  peace,  &c.    1881,  c.  326. 

In  every  case  of  an  appointment  to  fiU  a  vacancy  in  the 
office  of  justice  of  the  peace,  it  shall  be  the  duty  of  the 
clerk  of  the  superior  court  making  the  appointment, 
within  ten  days  after  such  appointment,  to  certify  and 
report  under  his  hand  and  seal  of  office  to  the  secretary  of 
state  the  name  of  the  appointee,  together  with  that  of  the 
justice  whom  he  succeeds. 

Sec.  90.  To  make  annual  reports  of  all  puhlic  funds  which 
come  into  their  hands.  1874-'5,  c.  151.  1870'-7,  c. 
270. 

Clerks  of  the  superior  court,  into  whose  liands  any  pub- 
lic funds  may  come  by  virtue  or  under  color  of  their 
office,  shall  make  an  annual  report  of  the  amount  and 
management  of  the  same,  on  the  first  Monday  in  Decem- 
ber, or  cf 'cacr  if  requii-ed,  of  each  and  every  year  to  the 


Chap.  9.]   CLERKS  OF  THE  SUPEEIOR  COURT.      37 

board  of  commissioners  of  the  several  counties.  Such  re- 
port shall  give  an  itemized  and  detailed  account  of  the 
public  funds  received  and  disbursed,  the  amount,  date 
and  source  from  which  it  was  received,  and  the  amount, 
date  and  person  to  whom  disbursed,  shall  be  addressed  to 
the  chaiiman  of  the  board  of  commissioners  for  the 
county  for  which  such  report  is  made,  and  shall  be  sub- 
scribed and  verified  by  the  oath  of  the  party  making  the 
same  before  any  person  allowed  to  administer  oaths. 

Sec.  91.  To  be  approved  and  registered.    1874:-'5,  c.  151. 
1876-'7,  c.  270. 

The  board  of  commissioners,  if  they  shall  approve  of 
the  reports  mentioned  in  the  preceding  section,  shall 
cause  the  same  to  be  registered  in  the  office  of  the  regis- 
ter of  deeds  in  a  book  to  be  furnished  to  the  register  of 
deeds  for  the  several  counties  by  the  board  of  commis- 
sioners, which  book  shall  be  marked  and  styled  "record 
of  official  reports,"  with  a  proper  index  of  all  reports  re- 
corded therein,  and  each  original  report  shall,  if  approved, 
be  endorsed  by  the  chairman  of  the  board  with  the  word 
"approved,"  the  date  of  approval,  and  the  endorsement 
signed  by  the  chairman,  and  when  recorded  by  the  regis- 
ter he  shall  endorse  thereon  the  date  of  registration,  the 
page  of  the  "record  of  official  reports"  upon  which  the 
same  is  registered,  sign  the  same  and  file  it  in  his  office. 

Sec.  92.  Failure  to  report.  1874:-'5,  c.  151,  s.  3.  1876-^ 
'7,0.276. 

If  any  clerk  shall  fail  to  report,  or  if  after  a  report  has 
been  made,  the  board  of  commissioners  disapprove  the 
same,  such  board  may  take  legal  steps  to  compel  a  proper 
report  to  be  made,  by  suit  on  the  bond  of  such  clerk. 
Any  clerk  wilfuUy  and  falsely  swearing  to  any  report 
made,  shall  be  guilty  of  a  misdemeanor. 

Sec.  93.  The  duties  of  clerts  of  the  superior  court  in  rela- 
tion to  hills  of  cost;  clerks  to  insert  detailed  items. 
1873-'4,  c.  116,  s.  1. 

The  clerks  of  the  several  superior  courts  shall  insert  in 
the  entry  of  judgment  in  every  criminal  action  tried  at 
the  several  terms,  whether  regular  or  special,  of  the  supe- 
rior courts  of  their  counties;  and  in  the  bills  of  cost  in  such 
cases  where  there  is  no  trial,  a  detailed  statement  of  the 
different  items  of  cost  in  such  cases,  and  to  whom  due, 
which  statements  shall  at  all  times  be  open  to  the  inspec- 
tion of  all  persons  interested  in  the  same. 


38      CLERKS  OF  THE  SUPERIOE  COURT.   [Chap.  9. 

Sec.  94.  Statement  of  costs  to  be  made  in  thirty  days. 
1873-'4:,  c.  lie,  s.  3. 

Ill  all  criminal  actions  in  the  superior  court,  where  the 
state  is  Hable  in  wliole  or  part  for  the  costs,  it  shall  be  the 
duty  of  the  clerk  of  the  superior  court  to  make  out  a 
statement  of  such  costs  from  the  record  or  docket,  within 
thirty  days  after  the  regular  or  special  terms  of  the  supe- 
rior court,  and  file  the  same  with  the  board  of  commis- 
sioners of  their  counties;  for  which  services  they  shaU 
receive  the  same  fees  as  are  now  provided  by  law  for  like 
duties. 

Sec.  95.  Clerks  to  keep  an  itemized  statement  of  allfines 
received  by  them,  and  to  properly  account  for  the 
same.    1879,  c.  96,  s.  1. 

It  shall  be  the  duty  of  the  clerks  of  the  several  courts 
to  enter  in  a  book,  to  be  supplied  by  the  board  of  commis- 
sioners of  the  county,  an  itemized  and  detailed  statement 
of  the  respective  amounts  received  by  them  in  the  way 
of  fines,  penalties  and  forfeitm-es,  and  said  book  shall  at 
all  times  be  open  to  the  inspection  of  the  public. 

Sec.  96.  Fines,  &c.,  to  be  paid  to  county  treasurer  within 
sixty  days;  treasurer  to  keep  Itemized  account,  &c. 
1879,  c.  96,  s.  2. 

All  fines,  penalties  and  forfeitures  so  received  by  any 
clerk  shall  within  sixty  days  after  being  received,  be 
paid  over  to  the  county  treasurer,  or  person  legally  act- 
ing as  such,  who  shall  give  a  receipt  to  every  such  clerk 
for  the  same,  and  said  county  treasurer  or  person  legally 
acting  as  such  shall  enter  in  a  book  to  be  kept  by  him 
the  exact  amount  of  any  fine,  penalty  or  forfeiture  so 
paid  over  to  him,  giving  the  date  of  payment,  tbe  name 
of  the  clerk  so  paying  the  same,  the  name  of  the  party 
from  whom  such  fine,  penalty  or  forfeiture  was  collected, 
and  in  what  case. 

Sec.  97.  Certified  statement  of  account  to  be  filed  with 
superior  court  clerk.    1879,  c.  96,  s.  3. 

It  shall  be  the  duty  of  the  county  treasurer,  or  person 
legally  acting  as  such,  to  file  a  certified  statement,  item- 
ized as  aforesaid,  in  the  office  of  the  clerk  of  the  superior 
court,  and  it  shall  be  the  duty  of  the  said  clerk  to  record 
said  statement  iu  a  book  to  be  kept  in  his  office  for  that 
purpose.  Said  certified  statement  shall  be  filed  by  said 
treasurer,  or  person  so  acting,  in  said  clerk's  office,  on 
the  first  days  of  January,  April,  July  and  October,  in 
each  and  every  year. 


Chap.  9.]   CLERKS  OF  THE  SUPERIOR  COURT.      39 

Sec.  98.  Fines,  &e.,  heretofore  collected,  to  be  paid  to 
the  treasurer.    1879,  c.  96,  s.  4. 

All  fines,  penalties  and  forfeitures  heretofore  collected 
by  any  such  clerks,  and  -which  have  not  been  accounted 
for,  shall  be  paid  over  to  such  treasurer  or  person  acting 
as  such. 

Sec.  99.  Fines,  &c.,  appropriated  to  the  common  schools. 
1879,  c.  96.  s.  5. 

All  fines,  penalties  and  forfeitures  above  mentioned 
shall  be  appropriated  and  paid  out  by  the  county  treas- 
urer as  aforesaid  for  the  use  of  the  free  common  schools 
of  the  county  in  which  said  fines,  penalties  and  forfeit- 
ures are  collected. 

Sec.  lOO.  Day  of  issuing  process  to  he  noted  thereon;  sher- 
iff to  endorse  day  of  receiving,  &c.  K.  C,  c.  31,  s.  39. 
1777,  c.  115,  s.  13. 

The  clerk  shall  note  on  all  precepts,  process  and  execu- 
tions, the  day  on  which  the  srame  shall  be  issued;  and  the 
sheriff  or  other  officer  receiving  the  same  for  execution, 
shall  in  like  manner  note  thereon  the  day  on  which  he 
shall  have  received  it,  and  the  d.^y  of  the  execution;  and 
every  clerk,  sheriff  or  other  officer  neglecting  so  to  do, 
shall  forfeit  and  pay  one  hundred  dollars. 

Boyden  v.  Odeneal,  1  Dev.,  177;  Fulbright  v  Tritt,  2  D.  &  B.,  491; 
Booth  V.  Leary,  3  D.  &  B.,  21;  Hyatt  v.  Tomlin,  2  Ired.,  149;  Wyche  v. 
Newsom,  87—144. 

Sec.  101.  Failure  to  perform  duty  a  misdemeanor.  1879, 
c.  96,  s.  6. 

If  any  clerk,  county  treasurer,  or  person  acting  as  such, 
shall  fail  or  neglect  to  perform  any  of  the  duties  or  re- 
quirements above  named,  of  this  chapter,  he  shall  be 
guilty  of  a  misdemeanor. 

Sec.  102.  OflEice  of  probate  judge  abolished. 

The  office  or  place  of  probate  judge  is  abolished,  and 
the  duties  heretofore  pertaining  to  clerks  of  the  superior 
court  as  judges  of  probate,  shall  be  performed  by  the 
clerks  of  the  superior  court  as  clerks  of  said  court,  and 
all  matters  pending  before  said  judges  of  probate  shall 
be  deemed  transferred  to  the  clerks  of  the  superior  court. 

Sec.  103.  Clerks  of  the  Superior  Court;  their  jurisdic- 
tion.   C.  C.  P.,  ss.  417,  418. 

The  clerks  of  the  superior  court  have  jurisdiction: 

(1)  To  take  proof  of  deeds,  biUs  of  sale,  official  bonds, 


40      CLERKS  OF  THE  SUPEEIOR  COURT.    [Chap.  9. 

letters  of  attorney,  or  other  instruments  permitted  or  re- 
quired by  law  to  be  registered; 

(2)  To  take  proof  of  wills  and  grant  letters  testamentary 
and  of  administration; 

(3)  To  revoke  letters  testamentary  and  of  administra- 
tion; 

(4)  To  appoint  and  remove  guardians  of  infants,  idiots, 
inebriates  and  lunatics; 

(5)  To  bind  out  apprentices  and  to  cancel  the  indentures  ^ 
in  such  cases; 

(G)  To  audit  the  accounts  of  executors,  administrators, 
collectors  and  guardians; 

(7)  To  exercise  jurisdiction  conferred  on  them  in  every 
other  case  prescribed  by  law. 

Wadsworth  v.  Davis,  G3— 251;  Hunt  v.  Sneed,  64—170;  Hunt  v.  Sneed, 
64-180;  Reynolds  v.  State,  64— 4G0;  Hcllig  v.  Foard,  64—710;  Rowland  v. 
Thompson,  64— 714;  Miller  v.  Barnes.  65-07;  Sprinkle  v.  Hutchinson,  66— 
450;  Guion  v.  Melvin,  69—243;  Bryan  v.  Uubbs,  69—423;  Wilson  v.  Abrams, 
70-^324;  Davis  v.  Cureton,  70—067;  Taylor  v.  Biddlc,  71—1;  Ballard  v. 
Kilpatrick,  71—281;  Bidwellv.  King,  71—287;  Williams  v.  "Williams,  71— 
427;  Patterson  v.  Miller,  72—510;  Hodge  v.  Hodge,  72—616;  Williams 
V.  Williams,  74—1;  Spears  v.  Snell,  74—210;  Spiers  v.  Halsted,  74— 
624;  Hendricks  v.  May  field,  74—726;  Gardner  v.  Anderson.  79—24;  Hay- 
wood V.  Haywood,  79—42;  Blue  v.  Blue,  79—69;  Wood  v.  Skinner. 
79—92;  Sanderson  v.  Sanderson,  79—369;  Barnes  v.  Brown,  79—401; 
Brattonv.  Davidson,  79—123;  Smith  v.  Pipkin,  79—569;  HofE  v.  Crafton, 
79—593;  Soulhall  v.  Shields,  81—28;  McFadgcn  v.  Council,  81—195;  Greg- 
ory v.  Ellis,  83—335:  Simpson  v.  Jones,  82—333;  Pegram  v.  Armstrong, 
83—336;  Murrillv.  Sandlin,  86—54. 

Sec.  104.  Disqualification  to  Act.  C.  C.  P.,  s.  419.   1871- 
'2,  c.  196,  s.  1. 

No  clerk  can  act  as  such  in  relation  to  any  estate  or  pro- 

CGGdill2^I 

(1)  If'he  has  or  claims  to  have,  an  interest  by  distribu- 
tion, by  will,  or  as  creditor,  or  otherwise; 

(2)  If  he  is  so  related  to  any  person,  having  or  claiming 
such  interest,  that  lie  would,  by  reason  of  such  relation- 
ship, be  disqualified  as  a  juror;  but  the  disqualification 
on  this  ground  ceases,  unless  the  objection  is  made  at  the 
first  hearing  of  the  matter  befoi'e  him. 

(3)  If  he  or  his  wife  is  a  party  or  a  subscribing  witness 
to  any  deed  of  conveyance,  testamentary  paper  or  nun- 
cupative will;  but  this  disquahfication  ceases  when  such 
deed,  testamentary  paper,  or  will  has  been  finally  ad- 
mitted to  or  refused  i:)robate  by  another  clerk,  or  before 
the  judge  of  the  superior  court. 


Chap.  9.]  CLERKS  OF  THE  SUPERIOR  COURT.   41 

(4)  If  he  or  his  wife  is  named  as  executor  or  trustee 
in  any  testamentary  or  other  paper;  but  this  disquahfica- 
tion  ceases  when  the  will  or  other  paper  is  finally  ad- 
mitted to  or  refused  probate  by  another  clerk,  or  before 
the  judge  of  the  superior  court; 

(5)  Or  if  he  shall  renounce  the  executorship  and  en- 
dorse the  same  on  the  will  or  on  some  paper  attached 
thereto,  before  it  is  propounded  for  probate,  in  which  case 
the  renunciation  must  be  recorded  with  the  will  if  admit- 
ted to  probate. 

Barlow  v.  Norfleet,  73 — 535;  Gregory  v.  Ellis,  82 — 335. 

Sec.  105.    Waiver  of  disqualification.    C.  C.  P.,  s.  420. 

The  parties  may  waive  the  disqualification  specified  in 
subdivisions  one,  two,  three  and  five  of  the  preceding 
section,  and  upon  filing  in  the  office  such  waiver  in  wri- 
ting, the  clerk  shall  act  as  in  other  cases. 

Sec.  106.    Removal  of  proceedings.    C.  C.  P.,  s.  421. 

When  any  of  the  disqualifications  specified  in  section 
one  hundred  and  four  exist,  and  there  is  no  waiver 
thereof,  or  cannot  be  such  waiver,  any  party  in  interest 
may  apply  to  the  judge  of  the  district  or  to  the  judge 
holding  the  courts  of  such  district  for  an  order  to  remove 
the  proceedings  to  the  clerk  of  the  superior  court  of  an 
adjoining  cormty  in  the  same  district. 

Sec.  107.  Commissioner  appointed  to  audit  accounts,  ap- 
proval of  judge  of  Superior  court,  record  made  by 
clerk  of  superior  court.    1871-'2,  c.  197,  s.  1. 

In  all  cases  where  the  clerk  of  the  superior  court  shall 
be  executor  or  administrator  of  any  estate  at  the  time  of 
his  election  to  office,  in  order  to  enable  him  to  settle  such 
estate,  the  judge  of  the  superior  court  mentioned  in  the 
preceding  section  is  empowered  to  make  such  order  as 
may  be  necessary  in  the  settlement  of  the  estate;  may 
audit  the  accounts  or  appoint  a  commissioner  to  audit  the 
accounts  of  such  executor  or  administrator,  and  report  to 
either  of  said  judges  for  his  approval,  and  when  the  ac- 
counts are  so  approved,  it  shall  be  his  duty  to  order  the 
proper  record  to  be  made  by  the  clerk,  and  the  accounts 
to  be  filed  in  court. 

Wilson  V.  Abrams,  70—334. 

Sec.  108.    Enumeration  of  powers.    C.  C.  P.,  s.  422. 

Every  clerk  has  power: 

(1)  To  issue  subpoenas  to  compel  the  attendance  of  any 


42      CLEEKS  OF  THE  SUPERIOR  COURT.    [Chap.  9. 

witness  residing  or  being  in  the  state,  or  to  compel  the 
production  of  any  bond  or  paper,  material  to  any  inquiry 
pending  in  his  court; 

(2)  To  administer  oaths  and  take  acknowledgments, 
whenever  necessary,  in  the  exercise  of  the  powers  and 
duties  of  his  ofiSce; 

(3)  To  issue  commissions  to  take  the  testimony  of  any 
witness  within  or  without  this  state; 

(4)  To  issue  citations  and  orders  to  show  cause  to  par- 
ties in  all  matters  cognizable  in  his  court,  and  to  compel 
the  appearance  of  such  parties; 

(5)  To  enforce  all  lawful  orders  and  decrees  by  execu- 
tion or  otherwise,  against  those  who  fail  to  comply  there- 
with or  to  execute  lawful  process.  Process  may  be  issued 
by  the  clerk,  to  be  executed  in  any  county  of  the  State, 
and  to  be  returned  before  him; 

(6)  To  exemplify,  under  seal  of  his  court,  all  transcripts 
of  deeds,  papers  or  proceedings  therein,  which  shall  be 
received  in  evidence  in  all  the  courts  of  the  state; 

(7)  To  preserve  order  in  his  court  and  to  punish  con- 
tempts; 

(8 )  To  adjourn  any  proceeding  pending  before  him  from 
time  to  time; 

(9)  To  open,  vacate,  modify,  set  aside,  or  enter  as  of  a 
former  time,  decrees  or  orders  of  his  court,  in  the  same 
manner  as  courts  of  general  jurisdiction; 

Loviuicr  V.  Pierce,  71—67;  "Wayhnb  v.  Smith,  83—229. 

(10)  To  award  costs  and  disbursements  as  prescribed 
by  law,  to  be  paid  personally,  or  out  of  the  estate  or  fund, 
in  any  proceeding  before  him. 

Sec.  109.    How  party  may  appear.    C.  C.  P.,  s.  423. 

A  party  may  appear  in  proceedings  in  which  he  is  con- 
cerned, either  in  person  or  by  attorney. 

Sec.  no.    Clerk  not  to  act  as  attorney,  &c.     C.  C.  P.,  s. 
424. 

No  clerk  or  any  partner  or  person  connected  in  law 
business  with  him  shall  cot  as  counsel  or  attorney-at-law 
in  the  county  wherein  he  i-i  clerk;  and  any  one  violating 
this  provision  shall  be  guilty  of  a  misdemeanor. 

Sec.  111.    Clerk  must  file  papers.    C.  C.  P.,  s,  426. 

Every  clerk  nuist  file  and  preserve  all  papers  in  pro- 
ceedings before  him,  or  belonging  to  the  court;  and  all 
such  papers  and  the  books  kept  by  him  belong  to,  and 


Chap.  9.]  CLERKS  OF  THE  SUPERIOE  COURT.   43 

appertain  to,  his  office,  and  must  be  delivered  to  his  suc- 
cessor. 

Sec.  112.    Records  to  be  kept  by  clerk.    C.  C.  P.,  s.  427. 

The  following  books  must  be  kept  by  each  clerk: 

(1)  A  record  of  wills,  in  which  must  be  recorded  all 
wills,  with  the  certificates  of  probate  thereof; 

(2)  A  record  of  appointments  of  executors,  administra- 
tors, guardians,  collectors  and  masters  of  apprentices, 
with  I'evocations  of  all  such  appointments; 

(3)  A  record  of  all  orders  and  decrees  passed  in  his 
office,  which  he  is  required  to  make  in  writing,  and  not 
required  to  be  recorded  in  some  other  book; 

(4)  A  record  of  accounts,  in  which  must  be  recorded 
the  quarterly  and  annual  accounts  of  executors,  adminis- 
tratoi's,  collectors  and  guardians,  as  audited  by  him  from 
time  to  time; 

(5)  A  record  of  settlements,  in  which  must  be  entered 
the  final  settlements  of  executor's,  administrators,  collec- 
tors and  guardians. 

Sec.  113.     Books  to  be  furnished  by  board  of  conimis- 
sioners;  to  be  indexed.    C.  C.  P..  s.  42S. 

The  books  required  to  be  kept  by  the  last  section  must 
be  funiished  to  the  clerk  by  the  board  of  commissioners; 
and  to  each  of  such  books  there  must  be  attached  an 
alphabetical  index  securely  bound  in  the  volume,  refer- 
ring to  the  entries  therein  by  the  page  of  the  book.  These 
books  must,  at  all  proper  times,  be  open  to  the  inspection 
of  any  person. 

Sec.  114.    Clerks  required  to  keep  open  office  for  probate 
business.    1871-'2,  c.  136,  s.  1. 

The  clerks  of  the  superior  court  shall  open  their  offices 
every  Monday,  from  9  a.  m.  to  4  p.  m.,  for  the  transac- 
tion of  probate  business,  and  on  each  succeeding  day 
till  such  matter  is  disposed  of. 

People  V.  IlL'aton,  77 — 18;  State  v.  Norman,  82 — 687. 

Sec.  115.    Forfeiture  of  office  for  failure.  1871-'2,  c.  136, 
s.  2. 

Any  clerk  of  the  superior  court  failing  to  comply  with 
the  preceding  section,  unless  such  failure  be  caused  by 
sickness  or  other  urgent  necessity,  shall  forfeit  his  office. 

People  V.  Ileaton,  77—18;  State  v.  Normau,  83—087. 


44      CLEEKS  OF  THE  SUPEEIOE  COUPT.    [Chap.  9. 

Sec.  116.  Issues  of  fact  joined  before  the  clerk  to  be 
transferred  to  the  superior  court;  appeals  shall  lie  to 
judge.  C.  C.  P.,  ss.  490,  491,  492,  1873-'4,  c.  34,  s. 
3,     1876-'7,  c.  241,  s.  5. 

All  issues  of  fact  joined  before  the  clork  shall  be  trans- 
ferred to  the  superior  court  for  trial  at  the  next  succeed- 
ing term  of  said  court;  and  appeals  shall  he  to  the  judge 
of  the  superior  court  haTing  jurisdiction,  either  in  term 
time  or  vacation,  from  judgments  of  the  clerk  of  the  su- 
perior court  in  all  matters  of  law.  In  case  of  such  trans- 
fer or  appeal,  neither  party  shall  be  required  to  give  an 
undertaking  for  costs;  and  the  clerk  shall  transmit,  on 
such  transfer  or  appeal,  to  the  superior  court,  or  to  the 
judge  thereof,  the  pleadings,  or  other  papers,  on  which 
the  issues  of  fact  or  of  law  arise.  An  appeal  must  be 
taken  within  twenty  days  after  the  entry  of  the  order  or 
judgment  of  the  clerk.  But  an  appeal  can  only  be  taken 
by  a  party  aggrieved,  who  appeared  and  moved  for,  or 
opposed  the  oider  or  judgment  appealed  from,  or  who, 
being  entitled  to  be  heard  thereon,  had  no  opportunity  of 
being  heard,  which  fact  may  be  shown  by  affidavit  or 
other  proof. 

Rowland  v.  Thompson.  64^714;  King  v.  Kinsey,  71—407;  Wood  v. 
Skinner,  79—93. 

Sec.  117.    Lawful  to  deposit  mortgage  in  lieu  of  prosecu- 
tion bond.    1874-'5,  c.  103,  s.  1. 

It  shall  be  lawful  for  any  person  desiring  to  commence 
any  civil  action  or  special  proceeding,  or  to  defend  the 
same,  his  agent  or  surety,  to  execute  a  mortgage  on  real 
estate  of  the  value  of  the  bond  or  undertaking,  required 
to  be  given  at  the  beginning  of  said  action,  or  at  any 
stage  thereof,  to  the  party  to  whom  the  bond  or  under- 
taking would  be  required  to  be  made,  conditioned  to  the 
same  effect  as  such  bond  or  undertaking  with  power  of 
sale,  which  power  of  sale  may  be  executed  upon  a  breach 
of  any  of  the  conditions  of  the  said  mortgage  after  ad- 
vertisement for  thirty  days. 

Sec.  118.  Executors,  &c.,  and  officers  may  execute  mort- 
gage in  lieu  of  bond.    1874-'5,  c.  103,  s.  2. 

Any  administrator,  executor,  guardian,  collector  or 
receiver,  or  anv  officer  required  to  give  an  official  bond, 
or  the  agent  or  surety  of  such  person  or  officer,  may  ex- 
ecute a  mortgage  on  real  estate,  of  the  value  of  the  bond 
required  to  be  given  by  such  administrator,  executor, 
guardian,    collector,   receiver  or  officer,  to  the  state  of 


Chap.  9.]   CLERKS  OF  THE  SUPERIOR  COURT.      45 

North  Carolina,  conditioned  to  the  same  effect  as  the 
bond  should  be,  were  the  same  given,  with  a  power  of 
sale,  which  power  of  sale  may  be  executed  by  the  clerk 
of  the  superior  court,  with  whom  said  mortgage  shall  be 
deposited,  upon  a  breach  of  any  of  the  conditions  of  said 
mortgage,  after  advertisement  for  thirty  days. 

Sec.  119.  Additional  security  may  be  required.    1874-'5, 
c.  103,  s.  5, 

If,  from  any  cause,  the  property  mortgaged  in  the 
cases  provided  for  in  the  two  preceding  sections,  shall  be- 
come of  less  value  than  the  amount  of  the  bond,  in  lieu 
of  which  the  mortgage  is  given,  and  it  shall  so  appear 
upon  affidavit  of  any" person  having  any  interest  in  the 
matter  as  a  security  for  which  the  mortgage  was  given, 
it  shall  be  the  duty  of  the  mortgagor  to  give  additional 
security  by  a  deposit  of  money,  or  the  execution  of  a 
moi'tgage  on  more  property,  or  justify  as  required  in  cases 
where  bond  or  undertaking  is  given. 

Sec.  120.  Any  person   may  execute  mortgage  in  lieu  of 
bond;  proviso,    1874-'5,  c.  103,  s.  3. 

Any  person  required  to  give  a  bond  or  undertaking,  or 
required  to  enter  into  a  recognizance  for  his  appearance 
at  any  court,  in  any  criminal  proceeding,  or  for  the 
security  of  any  costs  or  fine  in  any  criminal  action,  may 
also  execute  a  mortgage  on  real  property  of  the  value  of 
such  bond  or  recognizance,  payable  to  the  state  of  North 
Carolina,  conditioned  as  such  bond  or  recognizance  would 
be  required,  with  power  of  sale,  which  power  shall  be 
executed  by  the  clerk  of  the  court  in  which  said  mortgage 
shah  be  executed,  upon  a  breach  of  any  of  the  conditions 
of  said  mortgage:  Provided,  that  when  said  mortgage  is 
executed  before  a  justice  of  the  peace,  the  power  of  sale 
shall  be  executed  by  the  clerk  of  the  court,  to  which  the 
proceedings  are  returned. 

Sec.  121.  Affidavit   of  value  required    in    certain   cases. 
1874-'5,  c.  103,  s.  4. 

In  all  cases  where  a  mortgage  is  executed,  as  hereinbe- 
fore permitted,  it  shall  be  the  duty  of  the  clerk  of  the 
court  in  which  it  is  executed,  or  of  the  justice,  to  require 
an  affidavit  of  the  value  of  the  property  mortgaged,  to  be 
made  by  at  least  one  witness,  not  interested  in  the  matter, 
action  or  proceeding,  in  which  the  mortgage  is  given. 


46      CLEEKS  OF  THE  SUPERIOE  COUET.   [Chap.  9. 

Sec.  122.  Clerk  may  deposit  mortgage.  lS74-'5,  c.  103, 
s.  G. 

In  all  cases  "where  the  clerk  of  the  sui^erior  court  raay 
be  required  to  give  surety,  he  may  deposit  amoitgage  with 
the  register  of  deeds,  payable  to  the  state,  and  condition- 
ed as  the  bond  would  have  been  required,  with  power  of 
sale,  which  power  of  sale  shall  be  executed  by  the  register 
of  deeds,  upon  a  breacli  of  any  of  the  conditions  of  said 
mortgage;  and  the  register  of  deeds  shall  in  all  cases  im- 
mediately register  the  same,  at  the  expense  of  the  said 
clerk. 

Sec.  123.  Punishment  of  the  clerk  of  the  superior  court 
on  conviction  of  an  infamous  crime.  lS68-'9,  c.  201, 
s.  53. 

Upon  the  conviction  of  any  clerk  of  the  superior  court 
of  an  infamous  crime,  or  of  corruption  and  malpractice 
in  office,  he  shall  be  removed  from  office,  and  he  shall  be 
disqualified  from  holding  or  enjoying  any  office  of  honor, 
trust  or  profit  under  this  state. 

Clarke  V.  Carpenter,  81—309. 

Sec.  124.  Going  out  of  office,  to  transfer  records  to  succes- 
sor; judge  may  give  order  for  delivery  of  records,  &c. 
K.  C,  c.  19,  s.  14. 

Upon  going  out  of  office  for  whatever  reason,  any  clerk 
of  the  superior,  inferior,  or  criminal  court,  shall  ti-ansfer 
and  deliver  to  his  successor,  (or  to  such  person,  before  his 
successor  in  office  may  be  appointed,  as  the  court  may 
designate),  all  records,  documents,  papers,  and  money 
belonging  to  the  office.  And  the  judge  appointing  any 
clerk  to  a  vacancy  in  the  clei'kshi])  of  the  superior  court, 
may  give  to  such  person  an  order  for  the  delivery  to  him, 
by  the  person  having  the  custody  thereof,  of  the  records, 
documents,  papers  and  moneys  belonging  to  the  office, 
and  he  shall  deliver  the  same  in  obedience  to  such  order. 
And  in  case  any  clerk  going  out  of  office  as  aforesaid,  or 
other  person  having  tbe  custody  of  such  records,  docu- 
ments, papers,  and  money  as  aforesaid,  shall  fail  to  trans- 
fer and  deliver  them  as  herein  directed,  he  shall  forfeit 
and  pay  to  the  State  one  thousand  dollars,  which  shall  be 
sued  for  by  the  prosecuting  officer  of  that  court. 

O'Leary  v.  Ilarrison,  6  Jon.,  339;  Clarke  v.  Carpenter,  81 — 309. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  47 


CHAPTER  TEN. 
THE  CODE  OF  CIVIL  PEOOEDUEE— Acts  1868. 

Mitchell  V.  Henderson,  63— G43;  Ragland  v.  Currin,  04—355;  Clerk's 
office  V.  Huffsteller,  67—449;  Ins.  Company  v.  Davis,  74—78;  Lash  v. 
Thomas,  86—313. 


TITLE  I. 
GENERAL  DEFIMTIONS  AND  DIVISIONS. 


Section. 

125.  Remedies. 

126.  Actions. 

127.  Special-  proceedings. 

128.  Division  of  actions. 


Section. 

129.  Criminal  action. 

130.  Civil  action. 

131 .  Remedies  not  merged. 

132.  Definition  of    court;  to    mean 

clerk,  when. 


Sec.  125.    Remedies.    C.  C.  P.,  s.  1. 

Remedies  in  the  courts  of  justice  are  divided  into — 

(1)  Actions. 

(2)  Special  proceedings. 

Sec.  126.    Actions.    C.  C.  P.,  s.  2.  1868-'9,  c.  277,  s.  2. 

An  action  is  an  ordinary  proceeding  in  a  court  of  jus- 
tice, by  which  a  party  prosecutes  another  party,  for 
the  enforcement  or  protection  of  a  right,  the  redress 
or  prevention  of  a  vs^rong,  or  the  punishment  or  preven- 
tion of  a  public  offence. 

Wilson  &  Shober  v.  Moore,  72—558. 

Sec.  127.    Special  proceedings.    C.  C.  P.,  s.  3. 

Every  other  remedy  is  a  special  proceeding. 

Hunt  V.  Snecd,  64  -176;  St.ato  v.  Mcintosh,  64—607;  Talc  v.  Powe,  64— 
644;  Woodlcy  V.  Gilliam,  61— 649;  Sumner  v.  Miller,  64—088;  Hyman  v. 
Jarnigan,  65— 96;  Felton  V.  Elliott,  66— 195:  Ilowcrton  v.  Tate,  06-231; 
Badger  V.  Jones,  66— 305;  Sprinkle  v.   Hutchinson,  66—450;   Pellelier  v. 


48  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

Saund.rs.  G7-2'61 ;  Bell  v.  Kin-  70-330;  Hcrrins  v.  Outlaw,  70-330; 
Jenkins  v.  Carter.  70—500;  Patterson  v.  Jliller,  72—516;  Barnes  v.  Brown, 
79—401. 

Sec.  128.    Division  of  actions.    C.  C.  P.,  s.  4. 

Actions  are  of  two  kinds — 

(1)  Civil. 

(2)  Criminal. 
Sutton  V.  Owen,  65—123. 

Sec.  129,    Criminal  action.    C.  C.  P.,  s.  5. 

A  cdminal  action  is;  ,  •     i 

(1)  An  action  prosecuted  by  the  state  as  a  party,  against 
a  person  charged  with  a  public  offence,for  the  punishment 
thereof. 

State  V.  Lupton,  63—483;  State  v.  Simons,  68—378. 

(2)  An  action  ])rosecuted  bv  the  state,  at  the  instance 
of  an  individual,  to  prevent  an  apprehended  crime, 
against  his  person  or  property. 

State  V.  Locust,  63—574. 

Sec.  130,    Civil  action.    C.C.  P.,s.6. 

Every  other  is  a  civil  action. 

State  V.  Mclutosli,  64—007;  Tate  v.  Powe.  04-644;  Woodley  v.  Gilliam, 
64— 649;  Rowland  V.  Tliompson.  65— 110;  Murphy  v.  Harilson,  65— 246; 
Howerton  v.  Tate,  66— 231;  Bunting  v.  SlanoiU,  79—180. 

Sec.  131.    Kemedies  not  merged.    C.  C.  P..s.  7. 

Where  the  violation  of  a  right  admits  both  of  a  civil 
and  a  criminal  remedy,  the  right  to  prosecute  the  one  is 
not  merged  in  the  other. 

Sec.  132.  Definition  of  court,  to  mean  clerk,  when.    C,  C. 
P.,  s.  9. 

In  those  of  the  following  enactments  which  confer 
iurisdiction  or  power,  or  impose  duties,  when  the  words 
superior  court,  or  "court,"  in  reference  to  a  superior 
court  are  used,  they  mean  the  clerk  of  the  superior 
court,  unless  otherwise  specially  stated,  or  unless  refer- 
ence is  made  to  a  regular  term  of  the  court,  in  which 
cases  the  judge  of  the  court  alone  is  meant. 

McAdoo  V.  Benbow,  63-461;  Pelletler  v.  Sanders,  67—261. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE. 


49 


TITLE   II. 
GENERAL  PKOYISIONS  AS  TO  CIYIL  ACTIONS. 


Section. 

133.  Forms  of  civil  actions;  distinc- 
tion between  actions  at  law  and 
suits  in  equity  abolished. 


Section. 

134.  Pa-ties  designated  plaintiU  and 

defendant. 

135.  Feigned  issues  abolished. 


Sec.  133.  Forms  of  civil  actions;  clistinctioa  between 
actions  at  law  and  suits  in  equity  abolished.  C.  O.  P., 
s.  12.    Cons.,  Art.  IV.,  s.  1. 

The  distinction  between  actions  at  law  and  suits  in 
equity,  and  the  forms  of  a'l  sucli  actions  and  suits,  here- 
tofore existing,  are  abohshed,  and  there  shall  be  here- 
after but  one  form  of  action  for  tire  enforcement  or 
protection  of  private  rights,  and  the  redress  of  private 
wrongs,  which  shall  ba  denominated  a  civil  action. 

Matthews  v.  McPherson,  Co — 189;  Parsley  r.  Nicholson,  65 — 207;  Garrett 
V.  Trotter,  65—430;  Dates  v.  Gray,  68—443;  Froelich  v.  Exp.  Co.,  67—1; 
Moore  v.  Edmiston.  70—510;  Belmont  v.  Reilly.  71—360;  Bitting  v.  Thaxton, 
73—541. 

Sec.  134.  Parties  designated  plaintiflf  and  defendant.  C. 
C.P.,  s.  13. 

In  such  action,  the  party  complaining  shall  be  known 
as  the  plaintiff,  and  the  adverse  party  as  the  defendant. 

Garrett  v.  Trotter,  65—430 


Sec.  135.  Feigned  issues  aboli-slied.    C.  C.  P.,  s.  15. 

Feigned  issues  are  abolished;  and  instead  thereof,  in  the 
cases  where  the  power  formerly  existed  to  order  a  feigned 
issue,  or  when  a  question  of  fact  not  put  in  issue  by  the 
pleadings, is  to  be  tried  by  a  jury,  an  order  for  the  trial  may 
be  made  by  the  judge,  stating  distinctly  and  plainly  the 
question  of  fact  to  be  tried;  and  such  order  shall  be  the 
only  authority  necessary  for  a  trial. 

MeAdoo  V.  Benbow,  03 — 461;  Harkoy  v.  Houston,  65 — 137;  Abrams  v. 
Cureton,  74—523;  Blake  v.  Asliew,  76—325. 


60  CODE  OF  CIVIL  PROCEDUEE.    [Chap.  10. 

TITLE  III. 
LIMITATION  OF  ACTIONS. 

Chap.      I.     Actions  in  General. 

II.  Actions  for  the  Recovery  of  Real  Prop- 
erty—Time OF  Commencing. 

Ill  Actions  other  than  for  the  Recovery  of 
Real  Property— Time  of  Commencing. 

rV.  General  Provisions  .as  to  the  time  op 
Commencing  Actions. 


CHAPTER  ONE. 
ACTIONS  IN  GENEKAL. 


Section. 

136.  To  what  actions  this  title  shall 
extend. 

137.  Time  between  the  20th  of  May, 
1861,  and  the  1st  January,  1870, 
not  to  be  counted. 


Section. 

138.  Period  of  limitation — objection 
must  be  taken  by  answer. 


Sec.  136.    To  wliat  actions  tWs  title  shall  extend.    C.  C.  P., 
s.  16. 

This  title  shall  not  extend  to  actions  commenced 
before  the  twenty-fourth  day  of  August,  one  thousand 
eight  hundred  and  sixty- eight,  nor  to  cases  where  the 
riSht  of  action  accrued  before  that  date,  but  the  statutes 
in^rce  previous  to  that  date  shall  be  apphcable  to  such 
actions  and  cases. 

Ra<rl:mdv.Currin,  64— 355:  Williams  v.  Williams,  70-189;  Knight  v. 
Braswell  70—709;  Libbclt  v.  Maultsby,  71—345;  Woodhouse  v.  Simmons, 
73-30-  IJarham  V.  Lomax,  73-70;  Ellis  v.  Scott.  75-108;  Covington  v. 
Stewart  77—148;  Batts  v.  Winstcad,  77—238;  .lohnson  v.  Parker,  79-4,0; 
Cannon'v.  Morris,  81-139;  Briggs  v.  Smith,  83-306;  Blue  v.  Gilchrist, 
84-239-  Young  v.  Griffilli,  84-715;  Wbitc  v.  Beamau,  85— 3;  Hall  v. 
Gibbs,  87—4;  Crawford  v.  McLean,  87—169;  Johnston  v.  Jones.  87—393; 
Vaughan  v.  Hines,  87—415. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE. 


51 


Sec.  137.  Time  between  the  twentieth  of  May,  one  thous- 
and eight  hundred  and  sixty-one,  and  the  iiist  of  Jan- 
uary, one  thousand  eight  hundred  and  seventy,  not  to 
he  counted.     1866-'7,  c.  17,  s.  8.     lS73-'4,  c.  34,  s.  5. 

The  time  between  the  twentieth  day  of  Maj,  one 
thousand  eight  hundred  and  sixty  one,  and  the  first  day 
of  January,  one  thousand  eight  hundred  and  seventy, 
shall  not  be  counted,  so  as  to  bar  actions  or  suits,  or  to 
presume  satisfaction  or  abandonment  of  rights. 

Neely  V.  Craige,  Phil.,  187;  Morris  v.  Avery,  Pliil.,  238;  Hinton  v.  Hin- 
ton,  Phil.,  410;  Johnson  v.  TVinslow,  63—552;  Howell  v.  Buie,  64--446; 
Plott  V.  R.  R.  Co.,  65—74;  Smith  v.  Rogers,  65—181;  Williams  v.  Wil- 
liams, 70— 189;  Benbow  v.  Robbing,  71—338;  Lippard  v.  Troutmau,  72— 
551;  Faison  v.  Bowden,  74 — 43;  Edwards  v.  Jarvis,  74—315;  Hawkins  v. 
Savage,  75—133;  Melvin  v.  Waddell  &  Little,  75— 361;  Lane  v.  Richardson, 
79—159;  Badger  V.  Daniel,  79—372;  Pearsall  v.  Kenan,  79—472;  Johnson 
v.  Parker,  79— 475;  Kitchen  v.  Wilson,  80— 191;  Cannon  v.  Morris,  81— 
139;  Logan  v.  Fitzgerald,  87—308. 

Sec.  138.  Period  of  limitation,  objection  must  he  taken 
by  answer.    C.  C.  P.,  s.  17. 

Civil  actions  can  only  be  commenced  within  the  periods 
prescribed  in  this  title,  after  the  cause  of  action  shall 
have  accrued,  except  where  in  special  cases  a  diflferent 
limitation  is  prescribed  by  statute.  But  the  objection 
tha,t  the  action  was  not  commenced  within  the  time  lim- 
ited, can  only  be  taken  by  answer. 

Pegram  v.  Stoltz,  67—144;  Green  v.  R.  R.,  73—534;  Lewis  v.  Latham, 
74—283;  Daniel  v.  Com'rs,  74—494;  Wordsworth  v.  Davis,  75—159;  Privett 
V.  Calloway,  75— 233 ;  Robertson  v.  Pickerel,  77—302;  Kahnweller  v'.  Ander- 
son, 78—133;  Long  v.  Bank,  81  —41;  Freeman  v.  Sprague,  82—366;  Bacon 
v.  Berry,  85—124;  Williams  v.  MuUis,  87—159. 


CHAPTER  TWO. 

ACTIONS  FOR  THEEECOVERYOF  REAL  PROPERTY- 
TIME  OF  COMMENCING. 


Section. 

139.  When  the  state  will  not  sue. 

140.  Such    possession  valid    against 

claimants  under  the  state. 

141.  When  person  having  title  must 

sue. 


Section. 

142.  Proviso,  in  case  of  judgment  for 

plaintiff  reversed,  &c. 

143.  Seizin  within  twenty  years  when 

necessary. 


Section. 

147.  Relation    of  landlord  and  ten- 

ant. 

148.  Persons  under  disabilities. 

149.  Cumulative  disabilities. 

150.  Railroads,  &c.,  not  barred. 


52  CODE  OF  CIVIL  PEOCEDURE.    [Chap.  10. 

Section. 

144.  "When    adverse    possession   for 

twenty  years. 

145.  Action  after  entry. 

146.  Possession  presumed;    occupa- 

tion Tvben  deemed  under  legal 
tille. 

Sec.  139.    Wlien  the  state  will  not  sue,  thirty  years'  pos- 
session.   C.  C.  P.,s.  18. 

The  state  will  not  sue  any  person  for,  or  in  respect  of,  • 
any  real  property,  or  the  issues  or  profits  thereof,  by  rea- 
son of  the  riglit  or  title  of  the  state  to  the  same: 

(1)  When  the  person  in  possession  thereof,  or  those 
under  wliom  he  claims,  shall  have  been  in  the  adverse 
possession  thereof  for  thirty  years,  such  possession  hav- 
ing been  ascertained  and  identified  under  known  and 
visible  lines  or  boundaries;  shall  give  a  title  in  fee  to 
the  possessor. 

Osborne  v.  Jobnston,  65—23;  Melvin  v.  Waddell,  75—361;  Kitcben  v. 
Wilson,  81—91 ;  Malloy  v.  Brudeu,  86—251 ;  Logan  v.  Fitzgerald,  87—308. 

Twenty-one  years'  possession  under  colorable  title. 

(2)  When  the  person  in  possession  thereof,  or  those  un- 
der whom  he  claims,  shall  have  been  in  possession  under 
colorable  title  for  twenty-one  years,  such  possession  hav- 
ing been  ascertained  and  identified  under  known  and  vis- 
ible lines  or  boundaries. 

Malloy  V.  Bruden,  86—251. 

Sec.  140.    Such  possession  valid  against  claimants  under 
the  state.    C.  C.  P.,  s.  19. 

All  such  possession  as  is  described  in  the  preceding  sec 
tion,  under  such  title  as  is  therein  described,  is  hereby 
ratified  and  confirmed,  and  declared  to  be  a  good  and  le- 
gal bar  against  the  entry  or  suit  of  any  person,  under  the 
right  or  claim  of  the  state. 

Sec.  141.    When  person  having  title  must  sue.    C.  C.  P.,  s. 
20. 

When  the  person  in  possession  of  any  real  property,  or 
those  under  whom  he  claims,  shall  have  been  iwssessed 
of  the  same,  under  known  and  visible  lines  and  bounda- 
ries, and  under  colorable  title  for  seven  years,  no  entry 
shall  be  made  or  action  sustained  against  such  possessor, 
by  any  person  having  any  right  or  title  to  the  same,  ex- 
cept during  the  seven  years  next,  after  his  light  or  title 


Chap.  10.]    CODE  OF  ClVlh  PROCEDURE.  53 

shall  have  descended  or  acciued,  who  in  default  of  suing 
within  the  time  aforesaid,  shall  be  excluded  from  any 
claim  thereafter  to  be  made;  and  such  possession,  so 
held,  shall  be  a  perpetual  bar  against  all  persons;  subject 
to  the  quahfications  in  sections  one  hundred  and  forty- 
eight  one  hundred  and  forty-nine  and  one  hundred  and 
fifty. 

JlcCouncll  V.  McConDcU,  04—342;  Linker  v.  Benson,  67— ICO;  Moore  v. 
Thompson,  69— 120;  Dny  v.  Ilo-uard,  72-1;  Willinms  v.  Wallace,  78— 
354;  Davis  V.  McArlhur,  78— 357;  Jolinson  v.  Parker,  70— 475;  Necly  v. 
Nccly,  79—478;  Parker  v.  Banks,  70— 4£0;  Dickens  v.  Barnes,  79-490; 
Dili  V.  Overton,  81—393;  Ilenly  v.  Wilson,  81—405;  Gudger  v.  Ilcnslcy, 
83—481;  Popov.  Mallhis.  83—169;  Scolt  v.  Elkins,  83—424:  Islerv.  Dew- 
ey, 84—345;  Clirislenbury  v.  King,  85—229;  Edwards  v.  Tipton,  85—479; 
Malloy  V.  Bruden,  80—251;  Clayton  v.  Rose,  87— ICO;  Logan  v.  Fitzger- 
ald, 87—308. 

Sec.  142.    Proviso,  in  case  of  judgment  for  plaintiff  re- 
versed, &c.    C.  C.  P.,  s.  31. 

If  in  any  action  for  real  property,  the  plaintiff  be  non- 
suited or  judgment  be  given  for  him,  and  the  same  be 
reversed  for  error,  or  a  verdict  pass  for  the  plaintiff,  and 
judgment  thereon  be  arrested,  then  in  any  such  case  the 
plaintitf  may  commence  a  new  action  from  time  to  time, 
within  one  year  after  nonsuit,  judgment  reversed  or 
stayed  as  aforesaid,  notwithstanding  the  time  liinited  in 
the  preceding  section  for  bringing  such  action  may  have 
expired,  if  the  action  first  brought  was  commenced  with- 
in the  time  above  prescribed  for  bringing  such  actions. 

Sec.  143.    Seizin  within  twenty  years  when  necessary.    C. 
C.  P.,  s.  22. 

No  action  for  the  recovery  of  real  property,  or  the  pos- 
session thereof,  shall  be  maintained,  unless  it  appear  that 
the  plaintiff,  or  those  under  whom  he  claims,  was  seized 
or  joossessed  of  the  premises  in  question  within  twenty 
years  before  the  commencement  of  such  action;  subject 
to  the  qualifications  in  sections  one  lumdred  and  forty- 
eight,  one  hundred  and  forty-nine  and  one  hundred  and 
fifty. 

Covington  v.  Stewart,  77—148;  Neely  v.  Keely,  79—478;  Jolly  v.  Bryan. 
80—457. 

Sec.  144.    When  adverse  possession  for  twenty  years.     C. 
C.  P.,  s.  23. 

No  action  for  the  recovery  of  real  property,  or  the  pos- 
session thereof,  or  the  issues  and  profits  thereof,  shall  be 


64  CODE  OF  CIVIL  PROCEDUEE.    [Chap.  10 

maintained  when  the  person  in  possession  thereof,  or  the 
defendant  in  such  action,  or  those  under  whom  he  claims, 
shall  have  possessed  such  real  property  under  known  and 
visible  lines  and  boundaries  adversely  to  all  other  persons 
for  twenty  years;  and  such  possession  so  held,  shall  give 
a  title  in  fee  to  the  possessor,  in  such  property,  against 
aU  persons  not  under  disabihty. 

Mode  V.  Long-,  64—433;  McNeill  v.  Riddle,  66—290;  Melvin  v.  WaddeU, 
75—361;  Covington  V.  Stewart,  77—148;  Malloy  v.  Bruden,  86—251. 

Sec.  145.    Action  after  entry.    C.  C.  P.,  s.  24. 

No  entry  upon  real  estate  shall  be  deemed  sufficient  or 
valid,  as  a  claim,  unless  an  action  be  commenced  there- 
upon within  one  year  after  the  making  of  such  entry, 
and  within  the  time  prescribed  in  this  title. 

Sec.  146.  Possession  presumed:  occupation  when  deemed 
under  legal  title.    C.  C.  P.,  s.  35. 

In  every  action  for  the  recovery  of  real  property,  or  the 
possession  thereof,  or  damages  for  a  trespass  on  such  pos- 
session the  person  estabhshing  a  legal  title  to  the  premi- 
ses shall  be  presumed  to  have  been  possessed  thereof 
within  the  time  required  by  law;  and  the  occupation  of 
such  premises  by  any  other  person  shall  be  deemed  to 
have  been  under,  and  in  subordination  to,  the  legal  title, 
unless  it  appears  that  such  premises  have  been  held  and 
possessed  adversely  to  such  legal  title,  for  the  time  pre- 
scribed by  law  before  the  commencement  of  such  action. 

Johnston  v.  Pate,  83—110;  London  v.  Bear,  84—266;  Malloy  v.  Bru- 
den, 86—251. 

Sec.  147.  Relation  of  landlord  and  tenant.    C.  C.  P.,  s.  26. 

Whenever  the  relation  of  landlord  and  tennnt  shall 
have  existed  between  any  persons,  the  possession  of  the 
tenant  shall  be  deemed  the  possession  of  the  landlord, 
until  the  expiration  of  twenty  years  from  the  termina- 
tion of  the  tenancy;  or  where  there  has  been  no  written 
lease,  until  the  expiration  of  twenty  years  from  the  time 
of  the  last  payment  of  rent,  notwithstanding  that  such 
tenant  may  have  acquired  another  title,  or  may  have 
claimed  to  hold  adversely  to  his  landlord.  But  such  pre- 
sumptions shall  not  be  made  after  the  periods  herein  lim- 
ited. 

Day  V.  Howard,  73—1;  Keid  t.  Chatham,  75—86;  Melviu  v.  Waddell, 
75-361. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDUEE.  55 

Sec.  148.    Persons  under  disabilities.    C.  C.  P.,  s.  27. 

If  a  person  entitled  to  commence  any  action  for  the  re- 
coveiy'of  real  property,  or  to  make  an  entry  or  defence 
founded  on  the  title  to  real  property,  or  to  rents  and  ser- 
vices out  of  the  same,  be,  at  the  time  such  title  shall  de- 
scend or  accrue,  either, 

(1)  Within  the  age  of  twenty-one  years,  or 

(2)  Insane,  or 

(3)  Imprisoned  on  a  criminal  charge,  or  in  execution 
upon  conviction  of  a  criminal  offence,  or 

(4)  A  married  woman  ; 

Then  such  person  may,  notwithstanding  the  time  of 
limitation  prescribed  in  this  title  be  expired,  commence 
his  action,  or  make  his  entry,  within  three  years  next 
after  full  age,  coming  of  sound  mind,  enlargement  out  of 
prison,  or  discoverture  ;  and  at  no  time  thereafter. 

Lippard  v.  Troutman,  72 — 551 ;  Clayton  v.  Rose,  87—106. 

Sec.  149.  Cumulative  disabilities.    C.  C.  P.,  s.  28. 

When  two  or  more  disabilities  shall  co-exist,  or  when 
one  disability  shall  supervene  an  existing  one,  the  period 
prescribed  within  which  an  action  may  be  brought  shall 
not  begin  to  run  until  the  termination  of  the  latest  disa- 
bility. 

Lippard  v.  Troutman,  72—551. 

Sec.  150.  Railroads,  &c.,  not  barred.    K.  C,  c.  65,  s.  23. 
C.  C.  P.,  s.  29. 

No  railroad,  plank  road,  turnpike  or  canal  company, 
shall  be  barred  of,  or  presumed  to  have  conveyed,  any 
real  estate,  right  of  way,  easement,  leasehold,  or  other 
interest  in  the  soil  which  may  have  been  condemned,  or 
otherwise  obtained  for  its  use,  as  a  right  of  way,  depot, 
station-house  or  place  of  landing,  by  any  statute  of 
limitation  or  by  occupation  of  the  same  by  any  person 
whatever. 


56 


CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 


CHAPTER  THREE. 

ACTIONS   OTHEE  THAN  FOE  THE  EECOVEEY  OF 
EEAL  PKOPEETY— TIME  OF  COMMENCma. 


Section. 

151.  Periods  of  limitation  prescribed. 

152.  Ten  years — 

(1)  Upon  a  judgment,  &c.,  of  any 
court  of  the  United  States  or 
slate; 

(3)  Upon  a  sealed  instrument; 

(3)  For  foreclosure  of  a  mortgage, 
&c.; 

(4)  For  the  redemption  of  a  mort- 
gage. 

153.  Seven  years — 

(1)  On  a  judgment  of  a  justice  of 
the  peace ; 

(2)  Against  a  personal  or  real  rep- 
resentative. 

154.  Six  years — 

(1)  Upon  the  official  bond  of  a 
public  officer; 

(2)  Against  an  executor,  admin- 
istrator or  guardian,  on  his 
bond; 

(3)  For  injury  to  any  incorporeal 
hereditament. 

155.  Three  years — 

(1)  For  any  contract  or  obligation 
not  embraced  in  the  preceding 
section; 

(2)  Under  liability  created  by 
statute,  other  than  a  penalty, 
&c.; 

(3)  Trespass  upon  real  property; 

(4)  For  converting,  &c.,  any  goods 


Section. 

and  chattels,  or  for  their  spe- 
citic  recovery ; 

(5)  Criminal  conversation,  or  any 
other  injury  not  arising  under 
contract; 

(6)  Against  sureties  of  administra- 
tor. &c.,  on  official  bond  of 
their  principal; 

(7)  Against  bail ; 

(8)  Or  fees  due  any  officer  by 
judgment; 

(0)  For  relief  on  the  ground  of 
fraud  or  mistake. 

15C.  One  year — 

(1)  Against  sheriff,  &c.,  for  tres- 
pass under  color  of  otfice ; 

(2)  Upon  a  statute  for  a  penalty  or 
forfeiture; 

(3)  Libel,  assault,  battery  or  false 
imprisonment; 

(4)  Against  a  sheriff  or  otlier  of- 
ficer for  an  escape ; 

(5)  By  creditor  of  a  deceased  per- 
son against  his  personal  repre- 
sentative. 

157.  Six  montlis — 
For  slander. 

158.  For  other  relief  within  ten  years 

159.  Limilations  to  apply  to  actions 

by  the  state. 

160.  Actions  upon  an  account  current, 

when  cause  accrues. 


Sec. 


151. 
30. 


Periods  of  limitation  prescribed.     C.  C.  P.; 


The  periods  prescribed  for  the  commencement  of  ac- 
tions, other  than  for  the  recovery  of  real  property,  shall 
be  as  follows: 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDURE.  57 

Sec.   153.  Ten  years.    C.  C.  P.,  ss.  14  31. 

Within  ten  years— 

(1)  An  action  upon  a  judgment,  or  decree  of  any  court 
of  this  state,  or  of  the  United  States,  or  of  any  state  or 
territory  thereof,  from  the  date  of  the  rendition  of  said 
judgment  or  decree.  But  no  saich  action  shall  be  brought 
more  than  once,  nor  have  the  effect  to  contmue  the  lien 
of  the  original  judgment: 

Bioylcs  V.  Young,  81—315;  Pasour  v.  Rbyne,  83—140;  "Welfare  v. 
Thompson,  83—376;  McClenahan  v.  Gotten,  83—333;  Lyon  v.  Russ,  84— 
588;  Wairen  v.  Warren,  84—614;  Goodman  v.  Litaker,  85—8;  Fox  v. 
Kline,  85—173;  McDonald  v.  Dickson,  85—348;  Gotten  v.  McClenalian, 
85—254;  Kendall  v.  Bailey,  86—56;  Williams  v.  MuUis,  87-150;  J>,hnston 
V.  Jones,  87—303 ;  McDonald  v.  Dickson,  87—404. 

(2)  An  action  upon  a  sealed  instrument  against  the 
principal  thereto; 

Welfare  v.  Thompson,  83—376;  Belo  v.  Spach,  85—132;  Torrence  v. 
Alexander,  85—143;  Grawford  v.  McClellan,  87—169. 

(3)  An  action  for  the  foreclosure  of  a  mortgage,  or  deed 
in  trust  for  creditors  with  a  power  of  sale,  of  real  prop- 
erty, where  the  mortgagor  or  grantor  has  been  in  posses- 
sion of  the  property,  Avithin  ten  years  after  the  forfeiture 
of  the  mortgage,  or  after  the  power  of  sale  became  ab- 
solute, or  within  ten  years  after  the  last  payment  on  the 
the  same; 

Parker  v.  Banks,  79—480. 

(4)  An  action  for  the  redemption  of  a  mortgage,  where 
the  mortgagee  has  been  in  possession,  or  for  a  residuary 
interest  under  a  deed  in  trust  for  creditors,  where  tlie 
trustee  or  those  holding  under  him  shall  have  been  in 
possession;  within  ten  years  after  the  right  of  action 
accrued. 

Edwards  v.  Tipton,  85—478. 

Sec.   153.  Seven  years.     C.  C.  P.,  s.  33. 

Within  seven  years — 

(1)  An  action  on  a  judgment  rendered  by  a  justice  of 
the  peace,  from  the  date  thereof; 

Barringcr  v.  Allison,  78 — 79;  Broyles  v.  Young,  81—315;  Daniel  v. 
Laughlin,  87—433. 

(2)  By  any  creditor  of  a  deceased  person  against  his 
personal  or  real  representative,  -within  seven  years  next 
after  the  qualification  of  the  executor  or  administrator 
and  his  making  the  advertisement  required  by  law,  for 
creditors  of  the  deceased  to  present  their  claims,  where 
no  personal  service  of  such  notice  in  writing  is  made 


68  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

upon  the  creditor;  and  a  creditor  thus  barred  of  a  recov- 
ery against  the  representative  of  any  principal  debtor 
shall  also  be  barred  of  a  recovery  against  any  surety  to 
such  debt. 

McKeithan  v.  McGill,  83—517;  Cox  v.  Cox,  84—138;  Bacon  v.  Berry. 
85 — 124;  Vaughanv.  Hiues,  87 — 445;  Leake  v.  Covington,  87 — 501. 

Sec.  154.    Six  years.    C.  C  P.,  s.  33. 

Within  six  years — 

(1)  An  action  upon  the  ofl&cial  bond  of  any  public 
officer; 
Hewlett  V.  Schenck,  83—234;  Hughes  v.  Newsom,  86 — 424. 

.  (2)  An  action  against  any  executor,  administrator,  col- 
lector, or  guardian  on  his  official  bond,  within  six  years 
after  the  auditing  of  his  final  accounts  by  the  proper 
oflficer,  and  the  filing  of  such  audited  account  as  required 
by  law; 

Briggs  V.  Smith,  83—306;  Vaughan  v.  Hines,  87—445. 

(3)  An  action  for  injury  to  any  incorporeal  heredita- 
ment. 

Boyden  v.  Acbenbach,  79 — 539. 

Sec.  155.    Three  years.    C.  C.  P.,  s.  34. 

Within  three  years — 

(1)  An  action  upon  a  contract,  obligation  or  liability 
arising  out  of  a  contract,  express  or  implied,  except  those 
mentioned  in  the  preceding  sections; 

R.  R.  Co.  V.  Avery,  C4 — iOl;  Knight  v.  Biaswell,  70—709;  Guano  Co.  v. 
■Willard,  73—531;  Blackwcll  v.  Claywell,  75—215;  Austin  v.  Dawson,  75— 
523;  Egerton  v.  Logan.  81—172;  Hevplett  v.  Schenck,  82—234;  Welfare  v. 
Thompson,  83— 276;  Green  v.  College,  83 — 449;  Capcll  v.  Long,  84—17; 
Reedv.  Exum,  84—130;  Oatea  v.  Lilly,  84—643;  Timberlake  v.  Green,  84 
— 658;  Miller  V.  Lash,  85—51;  Torrence  v.  Alexander,  85—143;  Jolly  v. 
Bryan,  86—457;  Moore  v.  Com'rs,  87—209;  Robertson  v.  Dunn,  87—191. 

(2)  An  action  upon  a  liabihty  created  by  statute,  other 
than  a  penalty  or  forfeiture,  unless  some  other  time  be 
mentioned  in  the  statute  creating  it; 

(3)  An  action  for  trespass  upon  real  property; 
Spilman  v.  Roanoke  Nav.  Co.,  74—675;  King  v.  Little,  77—138. 

(4)  An  action  for  taking,  detaining,  converting  or  in- 
juring any  goods  or  chattels,  including  action  for  their 
specific  recovery; 

Hewlett  V.  Schenck,  82—234;  Etheridge  v.  Woodley,  83—11;  Currie  v. 
McNeUl,  83—176. 


k 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDUEE.  59 

(5)  An  action  for  criminal  conversation,  or  for  any- 
other  injury  to  the  person  or  rights  of  another,  not  aris- 
ing on  contract  and  not  hereinafter  enumerated; 

(6)  An  action  against  the  sureties  of  any  executor,  ad- 
ministrator, collector  or  guardian,  on  the  official  bond  of 
their  principal;  within  three  years  after  the  breach  there- 
of complained  of; 

Bushee  v.  Surles,  77—63;  Spniill  v.  Sanderson,  79—466;  Walton  v. 
Pearson,  85 — 34. 

(7)  An  action  against  bail;  within  three  years  after 
judgment  against  the  principal,  but  bail  may  discharge 
himself  by  a  surrender  of  the  principal,  at  any  time  be- 
fore final  judgment  against  the  bail;    . 

(8)  Fees  due  to  any  clerk,  sheriff  or  other  officer,  by  the 
judgment  of  a  court;  within  three  years  from  the  time  of 
the  judgment  rendered,  or  of  the  issuing  of  the  last  exe- 
cution therefor. 

1879,  c.  251, 

(9)  An  action  for  relief,  on  the  ground  of  fraud  or  mis- 
take, in  cases  which  heretofore  were  solely  cognizable 
by  courts  of  equity,  the  cause  of  action  in  such  cases  not 
to  be  deemed  to  have  accrued,  until  the  discovery  by  the 
aggrieved  party  of  the  facts  constituting  such  fraud  or 
mistake. 

Young  V.  Phifer,  72 — 539;  Barham  v.  Lomax,  73 — 76;  Ross  v.  Henderson, 
77_170;  WUson  V.  LandCo.,  77— 445;  Blount  v.  Parker,  78— 138;  Kahn- 
weiler  V.  Anderson,  78 — 133;  Spruill  v.  Sanderson,  79 — 466;  Egerton  v. 
Logan,  81—172;  Briggs  v.  Smith,  83—306;  Day  v.  Day,  84^-408;  Hughes  v. 
WhlLaker,  84—640;  Knight  v.  Houghtalling,  85—17. 

Sec.  156.    One  year.    C.  C.  P.,  s.  35. 

Within  one  year — 

(1)  An  action  against  a  sheriff,  coroner  or  constable, 
or  other  pubhc  officer,  for  a  trespass  under  color  of  his 
office; 

Hewlett  V.  Nutt,  79—363. 

(2)  An  action  upon  a  statute,  for  a  penalty  or  forfeit- 
ure, where  the  action  is  given  to  the  state  alone,  or  in 
whole  or  in  part,  to  the  party  grieved,  or  to  a  common 
informer,  except  where  the  statute  imposing  it  prescribes 
a  different  limitation; 

Hewlett  V.  Nutt,  79—363. 

(3)  An  action  for  libel,  assault,  battery  or  false  impris- 
onment; 


60  CODE  OF  CIVIL  PEOCEDURE.    [Chap.  10. 

(4'i  An  action  against  a  sheriff,  or  other  officer,  for  the 
escape  of  a  prisoner  arrested  or  imprisoned  on  civil  pro- 

C6SS' 

(5)  An  action  by  a  creditor  of  any  deceased  pei-son,  on 
whom  personal  notice  in  writing,  to  pres:?nt  his  claim  to 
the  personal  representative  of  the  deceased,  has  been 
served,  and  who  has  failed  so  to  do,  within  one  year  after 
the  service  of  such  notice;  and  any  such  credito]',  barred 
of  a  recovery  against  the  personal  representative  of  a 
principal  debtor,  by  reason  of  such  default,  shall  also  be 
barred  of  a  recovery  against  the  sm-ety  for  such  debt. 

Sec.  157.    Six  months.    C.  C.  P.,  s.  36. 

Within  six  months— 
An  action  for  slander. 

Sec.  158.  For  other  relief  within  ten  years.  C.  C.  P.,  s.  37. 

An  action  for  relief  not  herein  provided  for  must  be 
commenced  within  ten  years  after  the  cause  of  action 
shall  have  accrued. 

Libbett  v.  Maultsby,  71—345;  Ross  v.  Henderson,  77—170;  McDonald  v. 
Dickson,  85—248. 

Sec.  159.    Limitations  to  apply  to  actions  by  the  state.    C. 
C.  P.,  s.  38. 

The  limitations  prescribed  in  this  chapter  shall  apply 
to  civil  actions  brought  in  the  name  of  the  state,  or  for 
its  benefit,  in  the  same  manner  as  to  actions  by  or 
for  the  benefit  of  private  parties. 

Sec.  160.  Actions  upon  an  account  current,  when  cause 
accrues.    C.  C.  P.,  s.  39. 

In  an  action  brought  to  recover  a  balance  due  upon  a 
mutual,  open  and  curi-ent  account,  where  there  have  been 
reciprocal  demands  between  the  parties,  the  cause  of 
action  shall  be  deemed  to  have  accrued  from  the  time  of 
the  latest  item  proved  in  the  account,  on  either  side. 

Ro))ertaon  V.  Pickcrell,  77—303;  Mauney  v.  Coit,  86—463. 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDUEE. 


6] 


CHAPTEE  FOUE. 

GENERAL  PEOVISIONS  AS  TO  TIME  OF  OOMMENO- 
ma  ACTIONS. 


I 


Section. 

161.  When  action  deemed  com- 
menced. 

163.  Time  for  commencement  of 
acticn,  01'  enforcement  of 
judgment  against  defendant 
out  of  tlie  slate. 

163.  Exceptions,  persons  under  dis- 

abilities. 

164.  Death  of  a  person  entitled  be- 

fore liuiitalion  expires;  action 
on  claims  filed  by  administra- 
tor, &c.,  .ind  admitted,  not 
barred.  &c.,  applicable  to 
claims  already  filed. 

165.  Actions  by  aliens,  time  of  war 

not  counted. 

166.  When  ju'lgment  reversed,  &c., 

plaintiff  may  commence  new 
action. 

167.  Time    of    stay  by  injunction, 

&c.,  not  counted. 

168.  Time  during  controversy  about 


Section. 

probate  of  will,  &c.,  not 
coimted. 

169.  Disability  must  exist  when  the 

right  of  action  accrued. 

170.  Where  several  disabilities,    all 

must  be  removed. 

171.  Acknowledgment    by    partner, 

&c.,  after  dissolution. 

172.  Acknowledgment  or  new  prom- 

ise must  be  in  writing. 

173.  Co  tenants;  when  some  barred, 

others  not. 

174.  Title  not  to  affect  action  to  en- 

force payment  of  bills,  &c. 

175.  Nor   aciions  against  directors, 

&c.,  of  moneyed  corpora- 
tions, or  banking  associations; 
limitations  in  such  cases  pre- 
scribed. 

176.  Certain     suits    against     banks 

barred. 


Sec. 


161. 
40. 


When    action  deemed,  commenced.    C.  C.  P., 


An  action  is  commenced  as  to  each  defendant  when 
the  summons  is  issued  against  him. 
Wheeler  v.  Cobb,  75—21 ;  Etheridge  v.  Woodley,  83—11. 

Sec.  162.  Time  for  commencement  of  action,  or  enforce- 
ment of  j  iidg-ment  against  defendant  out  of  the  state. 
C.  C.  P.,s.  41.     1881,  c.  258,  ss.  1,2. 

If,  when  the  cause  of  action  accrue  or  judgment 
be  rendered  or  docketed  against  any  person,  he  shall  be 
out  of  the  state,  such  action  may  be  commenced,  or 
judgment  enforced,  withi.u  the  time  herein  respectively 
limited,  after  the  return  of  such  person  into  this  state. 


62  CODE  OF  CIVIL  PROCEDUEE.    [Chap.  10. 

and  if,  after  such  cause  of  action  shall  have  accrued  or 
judgment  rendered  or  docketed,  such  person  shall  depart 
from  and  reside  out  of,  this  state,  or  remain  continuously 
ahseut  therefrom  for  the  space  of  one  year  or  more,  the 
time  of  his  absence  shall  not  be  deemed  or  taken  as  any 
part  of  the  time  limited  for  the  commencement  of  such 
action,  or  the  enforcement  of  such  judgment. 

This  section  shall  apply  to  all  actions  that  have  accrued 
and  judgments  rendered,  transferred  or  docketed  since 
the  twenty-fourth  day  of  August,  one  thousand  eight 
hundred  and  sixty-eight. 

Blue  V.  Gilchrist,  84^—239;  Campbell  v.  Brown,  86—376. 

Sec.  163.  Exceptions,  persons  under  disabilities.  C.  C. 
P.,  s.  43. 

If  a  person  entitled  to  bring  an  action  mentioned  in 
the  last  chapter,  except  for  a  penalty  or  forfeiture,  or 
against  a  sheriff  or  other  officer  for  an  escape,  be  at 
the  time  the  cause  of    action  accrued,  either — 

(1)  Within  the  age  of  twenty-one  years;  or 

(2)  Insane;  or 

(3)  Imprisioned  on  a  criminal  charge,  or  in  execution 
under  the  sentence  of  a  criminal  court  for  a  term  less 
than  his  natural  life;  or 

(4)  A  married  woman; 

Then  such  person  may  bring  his  action  within  the 
times  before  limited,  after  the  disabihty  shall  be  re- 
moved. 

Lippard  v.  Troutman,  72—551 ;  Briggs  v.  Smitli,  83—306. 

Sec.  164.  Death  ofa  person  entitled  before  limitation  ex- 
pires; action  on  claims  filed  by  administrator,  &c., 
and  admitted,  not  barred,  &c.,  applicable  to  claims 
already  filed.    C.  C.  P.,  s.  43.    1881,  c.  80. 

If  a  person  entitled  to  bring  an  action  die  before  the 
expiration  of  the  time  limited  for  the  commencement 
thereof,  and  the  cause  of  action  survive,  an  action  rnay 
be  commenced  by  his  representatives  after  the  expira- 
tion of  that  time,  and  within  one  year  from  bis  death. 
If  a  person  against  whom  an  actiorl  may  be  brought  die 
before  the  expiration  of  the  time  limited  for  the  com- 
mencement thereof,  and  the  cause  of  action  survive,  an 
action  may  be  commenced  against  his  personal  represen- 
tative after  the  expiration  of  that  time,  and  within  one 
year  after  the  issuing  of  letters  testamentary  or  of  ad- 
ministration. But  if  the  claim  upon  which  such  cause 
of  actioa  is  based  be  filed  with  the  personal  representa- 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDURE.  63 

tive  within  the  time  ahove  specified,  and  the  same  shall 
be  admitted  by  him,  it  shall  not  be  necessary  to  bnng  an 
action  upon  such  claim  to  prevent  the  bar:  Provided, 
that  no  action  shall  be  brought  against  the  personal  rep- 
resentative upon  such  claim  after  his  final  settlement; 
and  this  shall  apply  to  claims  already  filed. 

Flemming  v.  Flemming,  85—127;  Hall  v.  Gibbs,  87—4;  Robertson  v. 
Dunn,  87—191;  Mauney  v.  Holmes,  87—428;  Daniel  v.  Laughlin.  87—433; 
Vaughan  v.  Hines,  87 — 445. 

Sec.  165.  Actions  by  aliens,  time  of  war  not  counted.    C. 
C.  P..  s.  44, 

When  a  person  shall  be  an  alien,  subject  or  citizen  of 
a  country  at  war  with  the  United  States,  the  time  of  the 
continuance  of  the  war  shall  not  be  part  of  the  period 
hmited  for  the  commencement  of  the  action. 

Sec.  166.  When  judgment  reversed,  &c.,  plaintiff  may 
commence  new  action.    C.  C.  P.,  s.  45. 

If  an  action  shall  be  commenced  within  the  time  pre- 
scribed therefor,  and  the  plaintiff  be  nonsuited,  or  a 
judgment  therein  be  reversed  on  appeal,  or  be  arrested, 
the  plaintiff,  or  if  he  die  and  the  cause  of  action  survive, 
his  heir  or  representative,  may  commence  a  new  action 
within  one  year  after  such  nonsuit,  reversal,  or  arrest  of 
judgment. 

McDowell  V.  Asbury,  66—444;  Straus  v.  Beardsley,  79—59;  Von  Glahn 
V.  de  Rosset,  81—467;  Martin  v.  Young,  85—156. 

Sec.  167.  Time  of  stay  by  injunction,  &c.,  not  counted.  C. 
C.  P.,  s.  46. 

When  the  commencement  of  an  action  shall  be  stayed 
by  injunction  or  statutory  prohibition,  the  time  of  the 
continuance  of  the  injunction  or  prohibition  shall  not  be 
part  of  the  time  limited  for  the  commencement  of  the 
action. 

Walton  V.  Pearson,  85—34. 

Sec.  168.  Time  during  controversy  about  probate  of  will, 
&c.,  not  counted.    C.  C.  P.,  s.  47. 

In  reckoning  time  when  pleaded  as  a  bar  to  actions, 
that  period  shall  not  be  counted  which  elapses  during  any 
controversy  on  the  probate  of  a  will  or  g'rauting  letters 
of  administration,  unless  there  be  an  administrator  ap- 
pointed during  the  pendency  of  the  action,  and  it  be  pro- 
vided that  an  action  may  be  brought  against  him. 


64  CODE  OF  CIVIL  PEOCEDURE.     [Chap.  10. 

Sec.  160.    Disability  must  exist  when  the  right  of  action 
accrued.    C.  C.  P.,  s.  48. 

No  person  shall  avail  himself  of  a  clisabilitj^,  unless  it 
existed  when  his  right  of  action  accrued. 

Sec.  170.  "Where  several  disabilities,  all  must  be  removed. 
C.  C.  P.,  s.  49. 

Where  two  or  more  disabilities  shall  co-exist  at  the  time 
the  right  of  action  accrues,  the  limitation  shall  not  attach 
until  they  all  be  removed. 

Sec.  171.  Acknowledgment  by  partner,  &c.,  after  dissolu- 
tion.   C  C.  P.,  s.  50. 

No  act,  admission  or  acknowledgment  by  any  partner 
after  the  dissolution  of  the  co-partnership,  or  by  any  of 
the  makers  of  a  promissory  note  or  bond  after  the  statute 
of  limitation  shall  have  barred  the  same,  shall  be  i-eceived 
as  evidence  to  repel  the  statute,  except  against  the  part- 
ner or  maker  of  the  promissory  note  or  bond,  doing  the 
act  or  making  the  admission  or  acknowledgment. 

Woodliouso  V.  Simmons,  73 — SO;  Lane  v.  Ricliardson,  79 — 159;  Green  y. 
College,  83—449. 

Sec.  172.  Acknowledgment  or  new  promise  must  be  in 
wi-iting.    C.  C.  P.,  s.  51. 

No  acknowledgment  or  promise  shall  be  received  as 
evidence  of  a  new  or  contmuing  contract,  whereby  to 
take  the  case  out  of  the  opei-ation  of  this  title,  unless  the 
same  be  contained  in  some  writing  signed  by  the  party 
to  be  charged  thereby;  but  this  section  shall  not  alter  the 
effect  of  any  payment  of  principal  or  interest. 

Simonton  v.  ClarU,  65—525;  Horntlial  v.  McRae,  C7— 21;  Fralcy  v 
Kelley,  67—78;  Knight  v.  Braswcll,  70—709;  Libbelt  v.  Maultsby,  71—345; 
Faison  v.  Bowden,  74—43;  State  v.  Bryant,  74—207;  Hcnly  v.  Lanier, 
75—172;  Kull  v.  Farmer,  78—339;  Lane  v.  Kicliardsou,  79—159;  Green  v. 
College,  83—449;  Grant  v.  Burgwyn,  84—560;  Pool  v.  Bledsoe,  85—1; 
"White  V.  Beaman,  85—3;  Belo  v.  Spach,  85—122;  Fleiiiming  v.  Flemming, 
85—127;  Riggs  v.  Roberts,  85—151;  Hay  more  v.  Uom'rs,  85—268;  Jones 
V.  McKinnon,  87—394;  McDonald  v.  Dickson,  87—404. 

Sec.  173.  Co-tenants;  when  some  barred,  others  not.  C.  C. 
P.,  s.  53. 

In  actions  by  tenants  in  common  or  joint  tenants  of 
personal  pi-operty  to  recover  the  same,  or  damages  for 
the  detention  of  or  injury  thereto,  and  any  of  them 
shall  be  barred  of  their  recovery  by  limitation  of  time, 
the  rights  of  the  others  shall  not  be  affected  thereby;  but 


Chap.  10.]    CODE  OP  CIVIL  PKOCEDUEE.  65 

they  may  recover  according  to  their  right  and  interest, 
notwithstanding  such  bar. 

Sec.  1 74.  Title  not  to  affect  action  to  enforce  payment  of 
bills,  &c.    C.  C.  P.,  s.  53.  1874-'5,  c.  170. 

This  title  shall  not  affect  actions  to  enforce  the  payment 
of  bills,  notes  or  other  evidences  of  debt,  issued  or  put  in 
circulation  as  money  by  moneyed  corporations  incorpo- 
rated under  the  laws  of  the  state. 

Sec.  175.  Nor  actions  against  directors,  &c.,  of  moneyed 
corporations  or  banking  associations;  limitations  in 
such  cases  prescribed.    C.  C  P.,  s.  54. 

This  title  shall  not  affect  actions  against  directors  or 
stockholders  of  any  moneyed  corporation,  or  banking 
association  incorporated  under  the  laws  of  this  state,  to 
recover  a  penalty  or  forfeiture  imposed,  or  to  enforce  a 
liabihty  created  by  law;  but  such  actions  must  be  brought 
within  three  years  after  the  discovery  by  the  aggrieved 
party,  of  the  facts  upon  which  tne  penalty  or  forfeitm-e 
attached,  or  the  liability  was  created. 

Sec.  176.  Certain  suits  against  banks  barred.  C.  C.  P., 
s.  54  (a),  1872-'3,  c.  120. 

Whereas,  many  citizens  of  the  state  of  North  Carolina 
were  stockholders  in  banking  institutions  chartei-ed  in 
other  states  before  the  year  one  thousand  eight  hundred 
and  sixty-one,  which  contain  individual  liability  clauses 
in  the  nature  of  penalties,  in  the  event  of  failure  on  the 
part  of  said  banking  corporations  to  meet  their  liabilities; 
and, 

Whereas,  said  banking  coi-porations  have  become  in- 
solvent by  the  results  of  the  late  war,  thereby  entailing 
upon  the  stockholders  the  loss  of  the  investment  of  their 
capital  therein,  and  they  are  threatened  with  further 
loss  by  reason  of  said  individual  liability  clauses;  there- 
fore. 

All  such  causes  of  action  as  have  not  hitherto  been 
commenced  in  this  state  against  citizens  thereof,  are 
hereby  declared  to  be  barred  by  lapse  of  time. 


66 


CODE  OF  CIVIL  PEOCEDUKE.    [Chap.  10. 


TITLE  IV. 


PIETIES  TO  CIYIX  ACTIONS. 


Section. 

177.  Action  to  be  by  party  in  inter- 

est; action  by  grantee  of  land 
held  adversely;  assignment  of 
thing  in  action. 

178.  Action  by  and  against  a  married 

woman. 

179.  Action  by    executor,    trustee, 

&c. 

180.  Infants  to  sue  by  guardian  or 

nest  friend. 

181.  Infants,  &c.,  to  defend  by  guar- 

dian ad  litem. 


Section. 

183.  Guardian  ad  litem  to  file  an- 
swer. 

183.  Who  to  be  plaintiffs. 

184.  "Who  to  be  defendants. 

185.  Parties  to  be  joined. 

186.  Parties  to  bills  and  notes,  &c. 

187.  Joint  contracts  of  copartners. 

188.  Actions,  when  not  to  abate. 

189.  Court  may    determine  contro- 

versy and  interpleader. 


Sec.  177.  Action  to  be  by  party  in  interest;  action  by 
grantee  of  land  belrt  aclver.sely;  assignment  of  thing  in 
action.    C.  C.  P.,  s.  55.     1874:-'5,  c.  356,  s.  1. 

Every  action  must  be  prosecuted  in  the  name  of  the 
real  party  in  interest,  except  as  otherwise  provided;  but 
this  section  shall  not  be  deemed  to  authorize  the  assign- 
ment of  a  thing  in  action  not  arising  out  of  contract.  But 
an  action  may  be  maintained  by  a  grautee  of  real  estate 
in  his  OAvn  name,  whenever  he  or  any  grantor  or  other 
person  through  whom  he  may  derive  title,  might  main- 
tain such  action,  notwithstanding  the  grant  of  suchgran- 
or  or  other  conveyance  be  void,  by  reason  of  the  actual 
possession  of  a  person  claiming  under  a  title  adverse  to 
that  of  such  grantor,  or  other  person,  at  the  time  of  the 
delivery  of  such  grant  or  other  conveyauce.  In  the  case 
of  an  assignment  of  a  thing  in  action  the  action  by  the 
assignee  shall  be  without  prejudice  to  any  set-off  or  other 
defence,  existing  at  the  time  of,  or  before  notice  of,  the 
assignment;  but  this  section  shall  not  apply  to  a  negoti- 
able promissory  note  or  bill  of  exchange,  transferred  in 
good  faith,  aud  upon  good  consideration,  before  due. 

Calvert  v.  Williams,  04— 108;  McConnaughey  v.  Chambers,  04 — 284; 
Rankin  V.  Allison,  64—070;  Ncal  v.  Lee,  04—078;  Sutton  v.  Owen.  65— 
133;  John.5on  v.  Mangum,  05—140;  Harris  v.  Burwell,  C5— 584;  Battle  v. 
Davis,  00— 353;  School  Comm.  v.  Kcsler,  66—333;  Mcbane  v.  Mebane,  66— 
334;  Biggs  v.  Wilhams,  66 — 437;  Martin  v.  Richardson,  68—255;  McNinn 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  67 

V.  Freeman,  68—341;  Andrews  v.  McDaniel,  68—385;  Setzer  v.  Lewis,  69— 
133;  Leach  V.  Harsis,  69—533;  Brown  v.  Turner,  70—93;  Utley  v.  Foy,  70 
—303;  Wilson  V.  Arentz,  70—670;  Boyle  v.  Robbins,  71—130;  Etheridge 
V.  Vernoy,  71—184;  Shule-r  v.  Millsaps.  71—397;  Murray  v.  Blackledge, 
71—493;  Abrams  V.  Cureton,  74—523;  Miller  v.  Tharel,  75—148;  Buie  v. 
Carver,  75— 559;  Justice  v.  Eddings,  75—581;  Henley  v.  Wilson,  77—316; 
Alexander  V.  Wriston,  81—191;  Jackson  v.  Love,  83—405;  Bank  v.  By- 
num,  84-34;  Havens  v.  Potts,  86—31;  Rogers  v.  Gooch,  87—443. 

Sec.  1 78.     Action  by  and  against  a  married  woman.     C.  C. 
P.,  s.  56. 

When  a  married  woman  is  a  party,  her  husband  must 
be  joined  with  her  except  that, 

(1)  When  the  action  concerns  her  separate  property, 
she  may  sue  alone; 

Tredwellv.  Blount,  86—33;  Pugli  v.  Grant,  86—39. 

(2)  When  the  action  is  between  herself  and  her  hus- 
band, she  may  sue  or  be  sued  alone; 

And  in  no  case  need  she  prosecute  or  defend  by  a  guar- 
dian or  next  friend. 

Wilson  V.  Arentz,  70—670;  Shuler  v.  Millsaps,  71—297;  Lippard  v.  Trout- 
man,  73— 551 ;  Huntley  v.  Wbitner,  77— 393;  Manning  v.  Manning,  79— 
293;  Vick  v.  Pope,  81-33;  Gulley  v.  Maccy,  81—356;  Nicholson  v.  Cox, 
83 — 48;Islerv.  Koonce,  83—55;  Hollings worth  v.  Harman,  83—153;  Briggs 
V.  Smith,  83— S06;McCormacv.  Wiggins,  84—278. 

Sec.  179.  Action  by  executor,  trustee,  &c.   C.  C.  P.,  s.  57. 

An  executor  or  administrator,  a  trustee  of  an  express 
tiTJst,  or  a  person  expressly  authorized  by  statute,  may 
sue  without  joining  with  him  the  person  for  whose  bene- 
fit the  action  is  prosecuted.  A  trustee  of  an  express  trust, 
within  the  meaning  of  this  section,  shall  be  construed  to 
inclu4e  a  person  with  whom,  or  in  whose  name,  a  con- 
tract is  made  for  the  benefit  of  another. 

Rankin  V.  Allison,  64— 673;  Battle  v.  Davis,  66—353;  School  Com.  v. 
Kesler,  66—323;  Biggs  v.  Williams,  66 — 427;  Davidson  v.  Elms,  67—228; 
Andrews  V.  McDaniel,  68—385;  Flack  v.  Dawson,  69—42;  Davis  v.  Fox, 
69—435;  Abrams  v.  Cureton,  74 — 533;  Buie  v.  Carver,  75 — 559;  Jones  v. 
McKinnon,  87—294. 

Sec.  180.    Infants  to  sue  by  guardian  or  next  friend.    C. 
C.  P.,s.  58.  1870-'71,  c.  233,  s.  1.  1871-'2.  c.  05,  s.  1. 

In  actions  and  special  proceedings  wlienever  any  of 
the  parties  plaintiff  are  infants,  idiots,  lunatics,  or  per- 
sons non  compos  mentis,  whether  said  infants,  idiots,  lu- 
natics or  persons  non  compos  mentis,  be  residents  or  non- 


68  CODE  OF  CIVIL  PKOCEDURE.     [Chap  10. 

residents  of  this  State;  said  infants,  idiots,  lunatics  or 
persons  non  compos  mentis  shall  appear  by  their  general 
or  testamentary  guardian,  if  they  have  any  within  the 
State;  and  if  there  shall  be  no  such  guardian,  then  said 
infajits,  idiots,  lunatics  or  i^evsoua  non  compos  ment is  vaay 
appeal  by  their  next  friend. 

Rankin  v.  Allison,  64^073;  Branch  v.  Goddin,  2  Winst.,  105;  Falls  v. 
Gorrell,  66—4.55;  Mason  v.  McCoimick,  75—263;  George  v.  Higb,  85— 
118. 

Sec.  181.  Infants,  &c.,  to  defend  by  guardian  ad  litem.  C. 
C.  P.,  s.  59.  1870-'l,  c.  233,  s.  5.  1871-'2,  c.  95, 
s.  2. 

In  all  actions  and  special  proceedings  whenever  any  of 
the  defendants  are  infants,  idiots,  lunatics,  or  |;ersons 
non  covipos  mentis,  said  infants,  idiots,  lunatics,  or  per- 
sons non  compos  mentis,  shall  defend  by  their  general  or 
testamentary  guardian,  if  they  have  any  within  this  State, 
whether  said  infants,  idiots,  lunatics,  or  persons  non 
compos  mentis,  are  residents  or  non-residents  of  this 
State;  and  if  said  infants,  idiots,  lunatics,  or  persons  no/i 
compos  mentis,  have  no  general  or  testamentary  guardian 
within  this  State,  and  any  of  the  defendants  in  said  ac- 
tion or  special  proceeding  shall  have  been  summoned, 
then  it  shall  be  lawful  for  the  court,  wherein  said  action 
or  special  proceeding  is  pending,  upon  motion  of  any  of 
the  parties  to  the  said  action,  or  special  pioceeding,  to 
appoint  some  discreet  person  to  act  as  guardian  ad  litem, 
to  defend  in  behalf  of  such  infants,  idiots,  lunatics,  or 
persons  non  compos  mentis,  and  such  guardian  so  ap- 
pointed shall,  if  the  cause  in  which  he  is  appointed  be  a 
civil  action,  file  his  answer  to  the  complaint  within  the 
time  required  for  other  defendants,  unless  such  time  be 
extended  by  the  court  for  good  cause,  and  if  the  cause  in 
which  he  is  so  appointed  be  a  special  proceeding,  a  copy 
of  the  complaint,  with  the  summons,  shall  bo  served  on 
said  guardian  ad  litem,  and  after  twenty  days'  notice  of 
said  summons  and  comijlaint  in  such  special  proceeding, 
and  after  answer  filed  as  above  prescribed  in  such  civil 
action,  the  court  may  proceed  in  the  cause  to  final  judg- 
ment, and  decree  therein  in  the  same  manner  as  if  there 
had  been  personal  service  upon  the  said  infant,  idiot,  lu- 
natic, or  person  non  compos  mentis,  defendants,  and  any 
decree  or  judgment  in  the  case  shall  conclude  the  infant, 
idiot,  lunatic,  or  person  non  compos  mentis,  defendants, 
as  effectually  as  if  he-or  they  had  been  personally  sum- 
moned. 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDURE.  69 

Hyman  v.  Jarnigan,  65—96;  Isler  v.  Jlurphy,  71—436;  Allen  v.  Shields, 
72—504;  Moore  v.  Gidney,  75—34;  Chambers  v.  Penland,  78—53;  Bass  v. 
Bass,  78—374;  Gulley  v.  Macy,  81—356;  Nicholson  v.  Cox,  83—44;  Mat- 
thews V.  Joyce,  85 — 258. 

Sec.  182.    Guardian  ad  litem  to  file  answer.    1870-'l,  c. 
233,  s.  4. 

Whenever  any  guardian  ad  litem  shall  be  appointed, 
he  shall  file  an  answer  in  said  action  or  special  proceeding, 
admitting  or  denying  the  allegations  thereof;  the  costs 
and  expenses  of  which  said  answer,  in  all  applications  to 
sell  or  divide  the  real  estate  of  said  infants,  shall  be  paid 
out  of  the  proceeds  of  the  property,  or  in  case  of  a  divi- 
sion, shall  be  charged  upon  the  land,  if  the  sale  or  division 
shall  be  ordered  by  the  court,  and  if  not  ordered  in  any 
other  manner  the  court  shall  direct. 

Moore  v.  Gedney,  75—34;  Gulley  v.  Macey,  81—356. 

Sec.  183.    Who  to  be  plaintiffs.    C.  C.  P.,  s.  60. 

All  persons  having  an  interest  in  the  subject  of  the 
action,  and  in  obtaining  the  relief  demanded,  may  be 
joined  as  plaintiffs  except  as  otherwise  provided. 

McKesson  v.  Mendenhall,  64r-502;  Flack  v.  Dawson,  69—42;  Gregory 
V.  Gregory,  69—522;  Wade  v.  Saunders,  70— 277;  State  v.  Blair,  76— 78; 
Rollins  V.  Rollins,  76—264;  Owens  v.  Alexander,  78—1;  Mebane  v.  Lay- 
ton,  86-571. 

Sec.  184.    "Who  to  he  defendants.    C.  C.  P.,  s.  61. 

Any  person  may  be  made  a  defendant  who  has,  or 
claims,  an  interest  in  the  controversy  adverse  to  the 
plaintiff,  or  who  is  a  necessary  party  to  a  complete  deter- 
mination or  settlement  of  the  questions  involved  therein; 
and  in  an  action  to  recover  the  possession  of  real  estate, 
the  landlord  and  tenant  thereof  may  be  joined  as  defend- 
ants; and  any  person  claiming  title  or  right  of  possession 
to  real  estate  may  be  made  party  plaintiff  or  defendant, 
as  the  case  may  require,  to  any  such  action. 

Jloore  ex  parte,  64-90;  Carney  v.  Whitehurst,  64—426;  Harkey  v.  Hous- 
ten,  65—137;  Bear  v.  Cohen,  05— 511;  Falls  v.  G^imblc,  66—455;  Isler  v. 
Foy,  66—547;  Bntchelor  v.  Macon,  67—181;  Rowland  v,  Gardner,  69—53 
Gregory  v.  Gregory,  69— 5-23:  Wade  v.  Saunders,  70—270;  AVade  v.  Saun 
(Jers,  70—277;  Rollins  v.  Rollins,  76-264;  Colgrove  v.  Koonce,  76—363 
Long  V.  Swindell,  77—176;  Atto.  Gen.  v.  Simonton,  78—57;  Winfield  v, 
Burron,  79—388;  Paschall  v.  Brandon,  79—504;  Beard  v.  Hall,  79—506 
Cecil  V.  Smith,  81—285;  Gill  v.  Young,  82—273;  Lytic  v.  Bcgcn,  82—301 
McCaskill  v.  Lancashire,  83—393;  Keathly  v.  Branch,  84—203;  Swcpsonv 
Johnston,  84r-449;  Maddrey  v.  Long,  86—383;  Nimrockv.  Scanlin,  87— 119 


70  CODE  OF  CIVIL  PEOCEDUEE.     [Chap.  10. 

Sec.  185.    Parties  to  be  joined,  &c.    C.  C.  P.,  s.  62. 

Of  the  parties  to  the  action,  those  who  are  united  in 
interest  must  be  joined  as  i^laintifts  or  defendants;  but  if 
the  consent  of  any  one  who  should  have  been  joined  as 
plaintiff  cannot  be  obtained,  he  may  be  made  a  defend- 
ant, the  reason  thereof  being  stated  in  the  complaint; 
and  when  the  question  is  one  of  a  common  or  general 
interest  of  many  persons,  or  where  the  parties  may  be 
very  numerous,  and  it  may  be  impracticable  to  bring 
them  all  before  the  couit,  one  or  more  may  sue  or  defend 
for  the  benefit  of  the  whole. 

Lewis  V.  McNatt,  65— C3;  Mcrwiu  v.  Ballard,  G5— 168;  Flack  v.  Dawson, 
69 — 43;  Gregory  V.  Gregory,  69—522;  Wilson  v.  Arentz,  70—670;  Von- 
Glalin  V.  Harris,  73—323;  VouGJalm  v.  Laltimer,  73—333;  Ten-Broeck  v. 
Orchard,  74 — 409;  VonGlahn  v.  DeRosset,  76—293;  Long  v.  Swindell,  77— 
176;  Gill  V.  Young,  82—273;  McCormac  v.  Wiggins,  84^278;  Bronson  v. 
Ins.  Co.,  85—411. 

Sec.  186.  Parties  to  bills  and  notes,  &c.    C.  C.  P.,  s.  63. 

Persons  severally  liable  upon  the  same  obligation  or 
instrument,  including  the  parties  to  bills  of  exchange  and 
promissory  notes,  may  aU  or  any  of  them  he  included  in 
the  same  action  at  the  option  of  the  plaintiff. 

Merwin  v.  Ballard,  65-168;  Gudger  v.  Baird,  66—438;  Wooten  t 
Maultsby,  69—162;  Logan  v.  Wallis,  76—416;  Syme  v.  Bunting,  86—175.  ' 

Sec.  187.    Joint  contracts  of  co-partners.    IJ.  C,  c.  31,  s. 
84.     1871-'2,  c.  24,  s.  1. 

In  aU  cases  of  joint  contracts  of  co-partners  in  trade  or 
others,  suit  may  be  brought  and  prosecuted  on  the  same 
against  aU,  or  any  number  of  the  persons  making  such 
contracts. 

McDowell  V.  Butler,  3  Jon.  Eq.,  311;  Winston  v.  Dalby,  64—299;  Mir- 
win  V.  Ballard,  65 — 168;  Lane  v.  Richardson,  79 — 159. 

Sec.  188.    Actions,  when  not  to  abate.    C.  C.  P.,  s.  64.    K. 
C,  c.  1,  s.  4.    R.  C,  c.  46,  s.  43. 

(1)  No  action  shall  abate  by  the  death,  marriage  or 
other  disability  of  a  party,  or  by  the  transfer  of  any  inter- 
est therein,  if  the  cause  of  action  survive  or  continue.  In 
case  of  death,  except  in  suits  for  penalties,  and  lor  darn- 
ages  merely  vindictive,  marriage  or  other  disability  of  a 
party,  the  court,  on  motion  at  any  time  within  one  year 
thereafter,  or  afterwards  on  a  supplemental  complaint, 
may  allow  the  action  to  be  continued,  by,  or  against,  liis 
representative  or  successor  in  interest.  In  case  of  any 
other  transfer  of  interest,  the  action  shall  be  contmuedin 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDURE.  71 

the  name  of  the  original  party,  or  the  court  may  allow 
the  person  to  whom  the  transfer  is  made,  to  be  substi- 
tuted in  the  action. 

■  Thompson  V.  Badham,  70— 141 ;  Baggarly  v.  Calvert,  70— G88;  SbieWa 
V.  Lawrence,  72 — 43;  Sledge  v.  Reid,  73 — 440;  Moore  v.  R.  R.,  74—528: 
Pennington  v.  Pennington,  75—356;  Lord  v.  Beard,  79—5. 

(2)  After  a  verdict  shall  be  rendered  in  any  action  for 
a  wrong,  such  action  shall  not  abate  by  the  death  of  a 
party. 

Thompson  v.  Badham,  70—141;  Shields  v.  Lawrence,  73—43;  Sledge  v. 
Reid,  73—440. 

(3)  At  any  time  after  the  death,  marriage,  or  other  dis- 
ability of  the  party  plaintiff,  the  court  in  which  an  action 
is  pending,  ul:)on  notice  to  such  persons  as  it  may  direct, 
and  upon  application  of  any  person  aggrieved,  may,  m  its 
discretion,  order  that  the  action  be  deemed  abated,  unless 
the  same  be  continued  by  the  proper  parties,  within  a 
time  to  be  fixed  by  the  court,  not  less  than  six  months, 
nor  exceeding  one  year  from  the  granting  of  the  order. 

Baggarly  v.  Calvert,  70—688. 

Sec.  189.    Court  may  determine    controversy   an   inter- 
pleader.   C.  C.  P.,  s.  65. 

The  court  either  between  the  terms,  or  at  a  regular 
term,  according  to  the  nature  of  the  controversy,  may 
determine  any  controversy  before  it,  when  it  can  be  done 
without  prejudice  to  the  rights  of  others,  or  by  saving 
their  rights;  but  when  a  complete  determination  of  the 
controversy  cannot  be  had  without  the  presence  of  other 
parties,  the  court  must  cause  them  to  be  brought  in.  A  nd 
when  in  an  action  for  the  recovery  of  real  or  personal 
property,  a  person  not  a  party  to  the  action,  but  having 
an  interest  in  the  subject  matter  thereof,  makes  applica- 
tion to  the  court  to  be  made  a  party,  it  may  order  him  to 
be  brought  in  by  the  proper  amendment.  A  defendant 
against  whom  an  action  is  pending  upon  a  contract  or  for 
specific  real  or  personal  property,  upon  proof  by  affidavit 
thai  a  person  not  a  party  to  the  action  makes  a  demand 
against  him  for  the  same  debt  or  property  without  collu- 
sion with  him,  may  at  any  time  before  answer,  apply  to 
the  court,  upon  notice  to  that  person  and  the  adverse 
party,  for  an  order  to  substitute  that  person  in  his  place, 
and  to  discharge  him  from  liability  to  either,  on  his  pay- 
ing into  court  the  amount  of  the  debt,  or  dehvering  the 
possession  of  the  property  or  its  value  to  such  person  as 


72 


CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 


the  court  shall  direct.     The  court,  in  its  discretion,  may 
make  such  an  order. 

Ramsour  V.  Ramsour,  63—231;  McKesson  v.  Mcadeuhall,  04 — 286;  Ear- 
key  v.  Houston,  65—137;  Matthews  v.  McPlierson,  65— 1«9;  Dewey  v. 
White,  65— 225;  Bates  V.  Lilly,  65— 232;  Bear  v.  Cohen,  65— 5U;Clcm- 
mons  V.  Ilamplou,  70 — 534;  Sluiler  v.  Millsaps,  71—297;  Tlionias  v.  Kelly, 
74 — 416;  Isler  v.  Murphy,  76 — 52;  Colgrove  v.  Koonce,  76 — 363;  Alto-Gen. 
T.  Simonlon,  78—57;  Winfield  v.  Burton,  79—388;  Cecil  v.  Smith.  81—285; 
Sims  V.  Goettle,  82—268;  Lytle  v.  Burgen,  82—301;  Pox  v.  Kline,  85—173; 
Maddrey  v.  Long,  86 — 383. 


TITLE  V. 


or  THE  PLACE  OF  TRIAL. 


Section. 

190.  Actions  to  be  tried  where  sub- 

ject matter  situated. 

191.  Actions  to  be  tried  where  cause 

of  action  arose. 

192.  Actions  to  be  tried  where  plain- 

tiff or  defendant  resides. 

193.  Actions  against  executors  and 

administrators,  and  upon  offi- 
cial bond. 

194.  Actions  against  foreign  corpora- 


Section. 

tions;   where  and  by   whom 
brought. 

195.  Change  of  place  of  trial. 

196.  Judges  autborized    to    remove 

causes    from     one  county  to 
another. 

197.  What    requisite     to    authorize 

such  removal. 

198.  On  removal  of  an  action,  what 

to  be  sent  with  transcript. 


Sec.  190.    Actions  to  l>e  tried  where  subject  matter  situ- 
ated.   C.  C.  P.,  s.  66. 

Actions  for  the  following  causes  must  be  tried  in  the 
county  in  which  the  subject  of  the  action,  or  some  part 
thereof,  is  situated,  subject  to  the  power  of  the  court  to 
change  the  place  of  trial,  in  the  cases  provided  in  this 
code: 

(1)  For  the  recovery  of  real  property,  or  of  an  estate 
or  interest  therein,  or  for  the  determination  in  any  form 
of  such  right  or  interest,  and  for  injuries  to  real  prop- 
erty; 

(2)  For  the  partition  of  real  property; 

(3)  For  the  foreclosure  of  a  mortgage  of  real  property; 

(4)  For  the  recovery  of  persoi^al  property  distrained  for 
any  cause. 

Fraley  v.  March,  68—160;  Phillips  v.  Holmes,  71—250;  Atto.-Gen.  v. 
Simonton,  78—57;  Askew  v.  Bynum,  81—350. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDUEE.  73 

Sec.  191.    Actions    to    l>e    tried   where    cause  of  action 
arose.    C.  C.  P.,  s.  67. 

Actions  for  the  following  causes  must  be  tried  in  the 
county  where  the  cause,  or  some  part  thereof,  arose, 
subject  to  the  hke  power  of  the  court  to  change  the 
place  of  trial,  in  the  cases  provided  in  this  code: 

(1)  For  the  recovery  of  a  penalty  or  forfeiture,  imposed 
by  statute;  except  that,  when  it  is  imposed  for  an  offence 
committed  on  a  sound,  bay,  river,  or  other  body  of  water, 
situated  in  two  or  more  counties,  the  action  may  be 
brought  in  any  county  bordering  on  such  sound,  bay, 
river,  or  other  body  of  water,  and  opposite  to  the  place 
where  the  offence  was  committed; 

(2)  Against  a  public  officer  or  person  especially  ap- 
pointed to  execute  his  duties,  for  an  act  done  by  him  by 
virtue  of  his  office;  or  against  a  person  who  by  his  com- 
mand or  in  his  aid,  shall  do  anything  touching  the  duties 
of  such  officer. 

Johnston  v.  Com'rs,  67—101;  Alexander  v.  Com'rs,  67—330;  Jones  v. 
Com'rs,  69—413;  Steele  v.  Com'rs,  70—137;  Pliillips  v.  Holmes,  71—350. 

Sec.  192.    Actions  to  be  tried  where  plaintiff  or  defendant 
resides.    C.    C.  P.,  s.  68.     1868-'9,  c.  59.     1868-'9, 

c.  277,  s.  6. 
In  all  other  cases  the  action  shall  be  tried  in-  the 
county  in  which  the  plaintiffs  or  the  defendants,  or  any 
of  them,  shall  reside  at  the  commencement  of  the  action; 
or  if  none  of  the  defendants  shall  reside  in  the  state,  then 
in  the  county  in  which  the  plaintiffs,  or  any  of  them, 
shall  reside;  and  if  none  of  the  parties  shaU  reside  within 
the  state,  then  the  same  may  be  tried  in  any  county, 
which  the  plaintiff  shall  designate  in  his  summons 
and  complaint,  subject,  however,  to  the  power  of  the 
court  to  change  the  place  of  trial,  in  the  cases  provided 
by  statute. 

Rankin  v.  Allison,  64—673;  Dewey  v.  White,  65—235:  Phillips  v.  Holmes, 
71—350;  Abramsv.  Curetou,  74^-533;  Fox  v.  Cline,  85—173. 

Sec.  193.    Actions  against  executors  and  administrators, 
and  upon  official  bonds.    C.  C.  P.,  s.  68.  (a).    1868-'9, 

c.  258,  s.  1. 

AU  actions  upon  official  bonds  or  against  executors  and 
administrators  in  their  official  capacity,  shall  be  institu- 
ted in  the  county  where  the  bonds  shaU  have  been  given, 
if  the  principal  or  any  of  the  sureties  on  the  bond  is 
in  the  county;  if  not,  then  in  the  plaintiff's  county. 

Cloman  v.  Staton,  78 — 335;  Devereux  v.  Devereux,  82 — 13. 
4 


7i  CODE  OF  CIVIL  PROCEDURE.     [Chap.  lo. 

Sec.  194.  Actions  against  foreign  corporations;  where 
and  by  whom  brought.  C.  C.  P.,  s.  361.  1876-'7,  c. 
170. 

All  action  against  a  corporation  created  by  or  under 
the  laws  of  any  other  state,  government,  or  country, 
may  be  brought  in  the  superior  court  of  any  county  in 
which  the  cause  of  action  arose,  or  in  which  it  usually 
did  business,  or  in  which  it  has  property,  or  in  which 
the  plaintiffs,  or  either  of  them,  shall  reside,  in  the  fol- 
lowing cases: 

(1)  By  a  resident  of  this  state,  for  any  cause  of  action; 

(2)  By  a  plaintiff,  not  a  resident  of  this  state,  when 
the  cause  of  action  shall  have  risen,  or  the  subject  of  the 
action  shall  be  situated  within  this  state. 

Sec.  195.    Change  of  place  of  trial.    C.  C.  P.,  s.  69. 

If  the  county  designated  for  that  purpose,  in  the  sum- 
mons and  complaint,  be  not  the  proper  county,  the  ac- 
tion may,  notwithstanding,  be  tried  therein,  unless  the 
defendant,  before  the  time  of  answering  expires,  demand 
in  writing  that  the  trial  be  had  in  the  proper  county,  and 
the  place  of  trial  be  thereupon  changed  by  consent  of 
parties,  or  by  order  of  the  court. 

The  court  may  change  the  place  of  trial  in  the  follow- 
ing cases: 

(1)  When  the  coimty  designated  for  that  purpose  is 
not  the  proper  county; 

(2)  When  the  convenience  of  witnesses  and  the  ends 
of  justice  would  be  promoted  by  the  change; 

(3)  When  the  judge  shall  have  been,  at  any  time,  in- 
terested as  party  or  counsel.  When  the  place  of  trial  is 
changed,  all  other  proceedings  shall  be  had  in  the  county 
to  which  the  place  of  trial  is  changed,  unless  otherwise 
pi-ovided  by  the  consent  of  the  parties  in  writing  duly 
filed,  or  by  order  of  court;  and  the  papers  shall  be  filed 
or  transferred  accordingly. 

R.  C,  c.  31,  ss.  115—118;  1870-'l.    c.  30,  s.  1. 

Rankin  V.  Allison,  G4— 673;  Carter  v.  R.  R.  Co.,  08—340;  Stanley  ▼. 
Mason,  69— 1;  Jones  v.  Com'rs,  69—412;  Phillips  v.  Holmes,  71— 250; 
Clomau  V.  Staton,  78 — 235;  State  v.  Swcpson,  81 — 571. 


Sec.  196.    Judges  authorized  to  remove  causes  from  one 
county  to  another.     1879,  c.  45. 

In  all  civil  and  criminal  actions  in  the  superior  and 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDURE.  75 

criminal  courts,  in  which  it  shall  be  suj;e;ested  on  oath, 
or  by  affirmation,  on  behalf  of  the  state,  or  the  traverser 
of  the  bill  of  indictment,  or  of  the  jjlaintiff  or  defend- 
ant, that  there  are  proliable  grounds  to  believe  that  jus- 
tice cannot  be  obtained  in  the  county  in  whicii  the  action 
shall  be  pending,  the  judge  shall  be  authorized  to  order 
a  copy  of  the  record  of  said  action  to  be  removed  to 
some  adjacent  county  for  trial,  if  he  shall  be  satisfied 
that  a  fair  trial  cannot  be  had  in  said  county,  after  hear- 
ing all  the  testimony  which  may  be  offered  on  either 
side  by  affidavits. 

Smith  V.  Greenlee,  3  Dev.,  387;  State  v.  Seaborn,  4  Dev.,  305;  State  v. 
Duncan,  6  lied.,  98;  State  v.  Sbepheid,  8  lied.,  193;  State  v.  Cunningham, 
72—469;  Phillips  v.  Lentz,  83—240;  Boydca  v.  Williams.  84—608. 


Sec.    197.    Wliat  requisite   to   authorize  such   removal. 
1870,  c.  45. 

No  action,  whether  civil  or  criminal,  shall  be  so  re- 
moved, unless  the  affidavit  shall  set  forth  particularly 
and  in  detail  the  ground  of  the  application.  And  it  shall 
be  competent  for  the  other  side  to  controvert  the  allega- 
tions of  fact  iu  said  application,  and  to  offer  counter  affi- 
davits to  that  end.  And  the  judge  shall  not  order  the 
removal  of  any  such  action,  unless  he  shall  be  satisfied 
after  thorough  e.-caminatiou  of  the  evidence  as  aforesaid, 
that  the  ends  of  justice  demand  it. 


Sec.  198.  On  removal  of  an  action,  what  to  be  sent  with 
transcript.  R.  C,  c.  31,  s.  IIS.  1800,  c.  694,  s.  12. 
1810,  c.  787. 

When  a  cause  shall  be  directed  to  be  removed,  the 
clerk  shall  transmit  to  the  court,  to  which  the  same  is 
removed,  a  transcript  of  the  record  of  the  case,  with  the 
prosecution  bond,  bail  bond,  and  the  depositions,  and  all 
other  written  evidences  filed  therein. 

Slate  V.  Collins,  3  Dev.,  117;  State  v.  Rc-id.  1  D.  &  B.,  377;  State  v.  Dun- 
can, 6  Ircd.,  23G;  Stale  v.  Baitield,  8  Ircd..  344;  Statov.  Swepson,  81—571; 
Phillips  V.  Lentz,  83—240;  Com'rs  v.  Lemley,  83—341. 


CODE  OF  CIVIL  PROCEDURE,    [Chap.  10. 


TITLE  VI. 
OF  THE  MANNER  OF  COMMENCING  CIVIL  ACTIONS. 


Section. 

199.  Civil    actions    commenced    by 

summons. 

200.  Summons  in  actions  returnable 

to  a  regular  term  of  the  supe- 
rior court. 

201.  Summons  returnable. 

203.  When  the  summons  is  issued 
more  tliaii  ten  days  before  the 
next  succeeding  term. 

203.  Summons  to  be  attested. 

204.  Summons  in  the   same  action 

may  issue  to  several  counties 
at  tbe  same  time. 
805.  Sheriff  leiurning  that  defendant 
is  not  to  be  found,  plaintiff 
may  issue  alias  ot  pluries  sum 
mons. 

206.  Filing  of  complaint. 

207.  Answer  of  defendant. 

208.  Reply  to  answer. 

209.  Before  issuing  summons  clerk  to 

take  undertaking,  &c. 

210.  How  to  sue  as  a  pauper;  how  ob- 

tained. 

211.  Court  may  assign  counsel. 

212.  No  costs  or  fees  recoverable. 

213.  What  summons  to  contain. 

214.  Service  of  summons. 


Section. 

215.  Actions  against  executors  and 

administrators. 

216.  Notice  of  no  personal  claim. 

217.  Manner  of  service  of  summons. 

218.  Service  by  publication. 

219.  Manner  of  publication. 

320.  Defendant  allowed    to   defend 
before  and  after  judgment. 

221.  Actions  for  foreclosuie  of  mort- 

gage. 

222.  Joint  and  several  debtors;  part- 

ners. 

223.  Parties  not  summoned  in  action, 

on  joint  contract,  may  be  sum- 
moned after  judgment. 

224.  Party  summoned  may  answer  or 

defend. 

225.  Subsequent  pleadings  and  pro- 

ceedings same  as  in  action. 

226.  Answer  and  reply  to  be  verified 

as  in  an  action. 

227.  "When  service  complete. 

228.  Proof  of  service. 

229.  Jurisdiclion;appcarance;  notice 

of  lis  pendens. 

230.  Parties  may  apply  for  relief  to 

the  superior  court  in  vacation 
or  in  term  time. 


Sec.  199.  Civil  actions  commenced  by  summons.    C.  C.  P., 

s.  70. 

Civil  actions  shall  be  commenced  by  issuing  a  sum- 
mons. 

Patrick  v.  Joiner,  63—573;  Heilig  v.  Stokes,  63—612;  McArlhur  v.  Mc- 
Eachin,  04—72;  Thompson  v.  BiTry,  61-79;  Woodley  v.  Gilliam,  64—649; 
Guion  v.  Mclvin,  09—242;  Steele  v.  Coui'rs,  70—137;  Belmont  v.  lieilly,  71 
—200;  Calvert  V.  Peebles,  82—334. 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDURE.  77 

Sec.  200.  Summons  in  actions  returnable  to  a  regular 
term  of  the  superior  court.     1870-'7,  c.  85,  s.  1. 

The  summons  sliall  run  in  the  name  of  the  state,  be 
signed  by  the  clerk  of  the  superior  court  having  juris- 
diction to  try  the  action,  and  shall  be  directed  to  the 
sheriff  or  other  proper  officer  of  the  county  in  which  the 
defendant,  or  one  or  more  of  the  defendants,  resides  or 
may  be  found.  It  shall  be  returnable  to  the  regular 
term  of  the  superior  court  of  the  county,  where  the 
plaintiff,  or  one  or  more  of  them,  or  the  defendant,  or 
one  or  more  of  them,  resides,  and  from  which  it  issued; 
and  shall  command  the  sheriff,  or  other  proper  officer, 
to  summon  the  defendant,  or  defendants,  to  appear  at 
the  next  ensuing  term  of  the  superior  court  and  answer 
the  complaint  of  the  plaintiff,  and  shall  be  dated  on  the 
day  of  its  issue.  The  officer  to  whom  the  summons  is 
addressed  shall  note  on  it  the  day  of  its  delivery  to  him, 
and  shall  execute  it  at  least  ten  days  before  the  begin- 
ning of  the  term  to  which  it  shall  be  returnable,  and 
shall  return  it  on  the  first  day  of  the  term. 

Johnson  v.  Fiitrell,  86—123;  Yeargin  v.  Siler,  83—348;  "Wyche  v.  New- 
som,  87—144. 

Sec.  201.    Summons  returnable.     1876-'7,  c.  85,  s.  2. 

If  any  summons  shall  be  issued  within  less  than  ten 
days  of  the  beginning  of  the  next  term  of  the  superior 
court  for  the  county  in  which  it  is  issued,  it  shall  be 
made  returnable  to  the  second  term  of  said  court  next 
after  the  date  of  its  issuing,  and  shall  be  executed  and 
returned  by  the  proper  officer  accordingly. 

Sec.  202.  When  the  summons  is  issued  more  than  ten 
days  before  the  next  succeeding  term.  1876-'7,  c.  85, 
s.  3. 

When  the  summons  shall  be  issued  more  than  ten  days 
before  the  next  succeeding  term  of  the  superior  court  of 
the  county  to  which  it  is  returnable,  and  shaU  be  exe- 
cuted by  the  proper  officer  within  less  than  ten  days  of 
said  term,  it  shall  be  returned  as  if  executed  in  proper 
time,  and  the  case  placed  on  the  summons  docket  and 
continued  to  the  next  succeeding  term,  at  which  term  it 
shall  be  treated  in  all  respects  as  if  said  next  succeeding 
term  had  been  the  return  term  thereof:  Provided,  that 
the  parties  to  the  action  may,  by  agreement,  make  up  the 
pleadings  at  the  term  to  which  the  summons  is  return- 
able: Provided  further,  that  nothing  herein  contained 
shall  be  construed  to  release  or  discharge  the  sheriff  or 


78  CODE  OP  CIVIL  PROCEDURE.    [Ch.aj*.  10. 

other  officer  from  any  liability  he  may  incur,  by  failing 
to  execute  the  summons  in  due  time. 

Ycargiu  v.  Silor,  83 — U48. 

Sec.  303.    Summons  to  be  attested.     lS7C-'7,  c.  85,  s.  4. 

Eveiy  summons  addressed  to  the  sheriff  or  other  officer 
of  any  county,  other  than  that  from  whicli  it  issued, 
shall  be  attested  by  the  seal  of  the  court:  but  when  it 
shall  be  addressed  to  the  sheriff  or  other  officer  of  the 
county  in  which  it  issued,  it  shall  not  be  attested  by  the 
seal  of  the  court. 

Joucs  V.  Giiptoii,  Go — 48;  Johnson  v.  Kcnncday,  70 — 435;  Clicrxlliam  v. 
Crews,  81—343;  Taylor  v.  Harris,  S3— 2J;  Dank  v.  McArtliur,  83—107;  Cal- 
vert v.  Peebles,  ^3—334;  Lee  v.  Euro,  82—428;  Taylor  v.  Taylor,  83—116; 
Yeargia  v.  Silcv,  83—348. 

Sec.  204.  Summons  in  the  same  action  may  issue  to  sev- 
eral counties  at  the  same  time.  11.  C,  c.  31,  s.  44. 
1789,  c.  314,  ss.  1,  2.     1831,  c.  14,  s.  2. 

The  plaintiff  may  issue  writs  of  summons,  directed  to 
the  sheriff  of  any  county  where  a  defendant  is  most 
likely  to  be  found,  noting  on  each  summons  that  it  is 
issued  in  the  same  action;  and  when  the  said  writs  are 
returned,  they  shall  be  docketed  as  if  only  one  had 
issued,  and  if  any  defendant  shall  not  be  served  with  such 
process,  the  same  proceeding  shall  be  had  as  in  other  cases 
of  similar  pi'ocess  not  executed. 

Sec.  205.  SherifT  returning  that  defendant  is  not  to  he 
found,  plaintiff  may  issue  alias  or  pluries  summous. 
K.  C,  c.  31,s.  52.     1777,  c.  115,  ss.  23,  71. 

When  the  sheriff  shall  return  in  a  civil  action  or  spec- 
ial proceeding,  that  the  defendant  is  not  to  be  found  in 
his  county,  the  plaintiff  may  sue  out  an  alias  ov  pluries 
summons,  returnable  in  the  same  manner  as  original 
process. 

McMIUanv.  Parsons,  7  Jon.,  103;  Dcavcr  v.  Keith,  Phil.,  428. 

Sec.  306.  Filingr  of  complaint.  1868-'9,  c.  76,  s.  3. 
1870-'l,  c.  42,  s.  3. 

The  plaintiff  shall  file  his  complaint  in  the  clerk's  office 
on  or  before  the  third  day  of  the  term  to  which  the  ac- 
tion is  brought,  otherwise  the  suit  may,  on  motion,  be 
dismissed  at  the  cost  of  the  plaintiff. 

McAdoo  V.  Benbow,  G3 — 4G1;  Haywood  v.  Bryan,  03— 571;  McAnliiir 
V.  McEachin,  G4— 73;  Moore  v.  ll.R.  Co.,  67—209;  Harvey  v.  Edmunds, 
08—343;  Gilchrist  v.  Kitchen,  86—30;  Ellington  v.  WicUer,  87— 14. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDUEE.  T9 

Sec.  207.    Answer  of  defendant.    1S70-'1,  c.  42,  s.  4. 

The  defendant  shall  appear  and  demur,  or  answer  at 
the  same  term  to  which  the  summons  shaU  be  returnable, 
otherwise  the  plaintiff  may  have  judgment  by  default. 

Howell  V.  Ferguson,  87—113. 

Sec.  20S.    Keply  to  answer.     1870-'l,  c.  42,  s.  5. 

The  plaintiff  shall  join  issue  on  the  demurrer  or  reply 
to  the  answer  at  the  same  term  to  which  such  demurrer 
or  answer  may  be  filed;  and  the  issues,  whether  of  law 
or  of  fact,  shall  stand  for  trial  at  the  next  term  succeed- 
ing the  term  at  which  the  pleadings  are  completed. 

JIcAdoo  V.  Benbow,  63—461;  Witkowsky  v.  Wasson,  69—38;  Woody 
V.  Jordan,  69—189;  Wilson  v.  Moore,  73—558;  Manix  v.  Howard,  82— 125 ; 
Boddie  v.  Woodard,  83—3. 

Sec.  209.  Before  issning  summons  clerk  to  take  undertak- 
ing. &c.    R.  C,  c.  31,  s.  40.    C.  C.  P.,  s.  71.     1868-'9, 

c.  277,  s.  13. 

Before  issuing  the  summons,  the  clerk  shall  require 
of  the  plaintiff,' either  to  give  an  undertaking  with  suffi- 
cient surety  in  the  sum  of  two  hundred  dollars,  with  the 
condition  that  the  same  shall  be  void,  if  the  plaintiff 
shall  pay  the  defendant  all  such  costs;  as  the  defendant 
shall  recover  of  him  in  tlie  action;  or  to  deposit  a  like 
suui  with  him  as  a  security  to  the  defendant  for  such 
costs;  and  in  case  of  such  deposit,  he  shall  give  to  the 
plaintiff  and  to  the  defendant  a  certificate  to  that  effect; 
or  to  file  with  him  a  written  authority  from  some  judge 
or  clerk  of  a  superior  court,  authorizing  the  plaintiff  to 
sue  as  a  pauper. 

Bledsoe  v.  Nixon,  69—81  ;  Hallman  v.  Dellinger,  84—1  ;  Matthews  v. 
Joyce,  85—258. 

Sec.  210.  How  to  sue  as  a  panper;  how  obtained.    C.  C.  P., 
s.  72.     lS68-'9,  c.  96,  s.  1. 

Any  judge  or  clerk  of  the  superior  coiurt  may  authorize 
any  person  to  sue  as  a  pauper  in  their  respective  courts, 
when  he  shall  prove,  by  one  or  more  witnesses,  that  he 
has  a  good  cause  of  action,  and  shall  make  affidavit  that 
he  is  unable  to  comply  v»ith  the  last  section. 

Corn  V.  Stcpp,  81—599;  BusUee  v.  Surlcs,  85—90. 

Sec.  211.  Court  may  assign  counsel.     1868-'9,  c.  96,  s.  2. 

The  court  to  wliich  such  summons  is  made  return- 
able may,  at  its  discretion,  assign  to  the  person,  suing 
as  a  pauper,  learned  counsel,  who  shall  prosecute  his  ac- 
tion. 


80  CODE  OF  CIVIL  PEOCEDUEE.     [Chap.  10. 

Sec.  212.    No  costs  or  fees  recoverable.    1868-'9,  c.  96, 
s.  3. 

Whenever  any  person  shall  sue  as  a  pauper,  no  officer 
shall  require  of  him  any  fee,  and  he  shall  recover  no 
costs. 

Rowarkv.  Gaston,  67—291;  Deal  v.  Palmer,  08— 215;  Porter  v.  Jones, 
68—320;  Brendle  V.  Heron,  68 — 496;  Miazza  v.  Calloway,  74—31;  Sumner 
V.  Candler,  74^263;  Bushee  v.  Surles,  85—90;  Hall  v.  Younts,  87—285. 

Sec.  213.  "What  summons  to  contain.      C.  C.  P.,  s.   74. 
1876-'7,  c.  241,  s.  1. 

There  shaU  be  inserted  in  the  summons  a  notice  in  sub- 
stance as  follovi^s:  that  if  the  defendant  shall  fail  to  an- 
swer the  complaint  within  the  time  specified,  the  plaint- 
iff will  apply  to  the  court  for  the  relief  demanded  in  the 
complaint. 

Graham  V.  R.  R.  Co.,  64r— 631;  Rankin  v.  Allison,  64^673;  Woody  v. 
Jordan,  69—189;  Phillips  v.  Holland,  78—31;  Nicholson  v.  Cox,  83—44; 
Nicholson  V.  Cox,  83— 48;  Price  v.  Cox,  83—261. 

Sec.  214.  Service  of  summons.    1876-'7,  c.  241,  s.  2. 

The  summons  shall  be  served  in  all  cases,  except  as 
hereinafter  provided,  by  the  sheriff  or  other  officer,  read- 
ing the  same  to  the  party  or  parties  named  as  defendant, 
and  such  reading  shall  be  a  legal  and  sufficient  service. 

Middleton  v.  Duffle,  73—72;  Johnson  v.  Futrell,  80—122;  Webster  v. 
Laws,  86—178. 

Sec.  215.  Actions  against  executors  and  administrators. 
1876-'7,  c.  241,  s.  6. 

In  addition  to  the  remedy  by  special  proceeding,  as 
provided  by  law,  actions  against  executors,  adminis- 
trators, collectors  and  guardians  may  be  brought  origin- 
ally to  the  superior  court  at  term  time  ;  and  in  all  such 
cases  it  shall  be  competent  to  thecourt  in  which  said  actions 
shaU  be  pending  to  order  an  account  to  be  taken  by  such 
person  or  persons  as  said  court  may  designate,  and  to 
adjudge  the  apphcation  or  distribution  of  the  fund  ascer- 
tained, or  to  grant  other  reUef,  as  the  nature  of  the  case 
may  require. 
Pegram  v.  Armstrong,  82—326. 

Sec.  216.  Notice  of  no  personal  claim.    C.  C.  P.,  s.  81. 

In  case  of  a  defendant,  against  whom  no  personal  claim 
is  made,  the  plaintiff  may  deliver  to  such  defendant  with 
the  summons,  a  notice  subscribed  by  the  plaintiff  or  bis 
attorney,  setting  forth  the  general  object  of  the  action,  a 


Chap.  10.]    CODE  OF  CIVIL  PROCEDUEE.  81 

brief  description  of  the  property  affected  by  it,  if  it  affects 
real  or  personal  property,  and  that  no  personal  claim  is 
made  against  such  defendant.  If  a  defendant  on  whom 
such  notice  is  served,  unreasonably  defends  the  action, 
he  shall  pay  costs  to  the  plaintiff. 

Sec.  317.  Manner  of  service  of  summons.    C.  C.  P.,  s.  82. 
1874:-'5,  c.  168,  s.  1. 

The  summons  shall  be  served  by  delivering  a  copy 
thereof  in  the  following  cases: 

(1)  If  the  action  be  against  a  corporation,  to  the  presi- 
dent or  other  head  of  the  corporation,  secretary,  cashier, 
treasurer,  director,  managing  or  local  agent  thereof  : 
Provided,  that  any  person  receiving  or  collecting  moneys 
within  this  state  for,  or  on  behalf  of,  any  corporation  of 
this  or  any  other  state  or  government,  shall  be  deemed  a 
local  agent  for  the  purpose  of  this  section;  but  such  ser- 
vice can  be  made  in  i-espect  to  a  foreign  corporation  only 
when  it  has  property  within  this  state,  or  the  cause  of 
action  ai'ose  therein,  or  when  the  plaintiff  resides  in  the 
state,  or  when  such  service  can  be  made  within  the  state, 
personally  upon  the  president,  treasurer  or  secretary 
thereof; 

KirkUind  v.  Hogan,  65—144;  Cunningham  v.  Ex.  Co.,  67 — 425;  Turner 
V.  Eailioad  Co.,  70 — 1;  Islcv  v.  Murphy,  71 — 436;  Katzenstein  v.  R.  K. 
Co.,  78—283;  Gullcy  v.  Macy,  81—356. 

(2)  If  against  a  minor  under  the  age  of  fourteen  years, 
to  such  minor  personally,  and  also  to  his  father,  mother 
or  guardian,  or  if  there  be  none  within  the  state,  then  to 
any  person  having  the  care  and  control  of  such  minor,  or 
with  whom  he  shall  reside,  or  in  whose  service  he  shall 
be  employed ; 

(3)  If  against  a  person  judicially  declared  to  be  of  un- 
sound mind,  or  incapable  of  conducting  his  own  affairs 
in  consequence  of  habitual  drunkenness,  and  for  whom  a 
committee  or  guardian  has  been  appointed,  to  such  com- 
mittee and  to  the  defendant  personally. 

McAden  v.  Hooker,  74—24. 

Sec.  318.    Service  by  publication.    C.  C.  P.,  s.  83. 

Where  the  person  on  whom  the  service  of  the  sum- 
mons is  to  be  made,  cannot,  after  due  diligence,  be  found 
within  the  State,  and  that  fact  appears  by  affidavit  to 
the  satisfaction  of  the  court,  or  to  a  judge  thereof,  and  it 
in  like  manner  appears  that  a  cause  of  action  exists 
against  the  defendant  in  respect  to  whom  service  is  to  be 
made,  or  that  he  is  a  proper  party  to  an  action  relating 


82  CODE  OF  CIVIL  PROCEDUEE.     [Chap.  10. 

to  real  property  in  this  state,  such  court  or  judge  may 
grant  an  order  that  the  service  be  made  by  pubUcation  of 
a  notice  in  either  of  the  following  cases: 

(1)  Where  the  defendant  is  a  foreign  corporation,  and 
has  property  within  the  state,  or  the  cause  of  action 
arose  therein ; 

Turner  v.  K.  R.Co.,  70—1;  Spiersv.  Halstead,  71—209;  Wheelerv.  Cobb, 
75—21;  Branch  v.  Fi-auk,  81—180;  Weaver  v.  Roberts,  84—493. 

(2)  Where  the  defendant,  being  a  resident  of  this 
state,  has  departed  therefrom,  with  intent  to  defi-aud  his 
creditors,  or  to  avoid  the  service  of  a  summons,  or  keeps 
himself  concealed  therein  with  a  like  intent; 

(3)  W^here  he  is  not  a  resident  of  this  state,  but  has 
property  therein,  and  the  court  has  jurisdiction  of  the 
subject  of  the  action; 

Spiersv.  Halstead,  71—209;  Pender  v.  Griffin,  73—270;  Wlieelcr  v.  Cobb, 
75—21 ;  Windley  v.  Bradway,  77—333. 

(4)  Where  the  subject  of  the  action  is  real  or  personal 
property  in  this  state,  and  the  defendant  has,  or  claims  a 
Men  or  intei-est  actual  or  contingent,  therein,  or  the  relief 
demanded  consists  wholly  or  partly  in  excluding  the  de- 
fendant from  any  lien  or  interest  therein; 

(5)  Where  the  action  is  for  divoi'ce,  and  in  all  cases 
where  publication  is  made,  the  complaint  must  be  filed, 
before  the  expiration  of  the  time  of  publication  ordered. 

King  V.  King,  84—33. 

Sec.  319.    Manner  of  publication.    C.  C.  P.,  s.  84.    1876- 
'7,  c.  241,  s.  3. 

The  order  must  direct  the  publication  in  any  one  or 
two  newspapers  to  be  designated  as  most  likely  to  give 
notice  to  the  person  to  be  served,  and  for  such  length  of 
time  as  may  be  deemed  reasonable,  not  less  than  once  a 
week  for  six  weeks,  a  notice,  giving  a  title  of  the  action, 
the  purpose  of  the  same,  and  requiring  the  defendant  to 
appear  and  answer,  or  demur  to  the  complaint  at  a  time 
and  place  therein  mentioned;  and  no  publication  of  the 
summons,  nor  mailing  of  the  summons  and  complaint, 
shall  be  deemed  necessary. 

Pender  v.  Griffin,  73—270;  BurweU  v.  Lailcrty,  76—383;  Price  v.  Cox. 
83—261. 

Sec.  220.    Defendant  allowed  to  defend  before  and  after 
judgment.    C.  C.  P.,  s.  85. 

The  defendant  against  whom  publication  is  ordered,  or 
his  representatives,  on  application  and  sufficient  cause 
shown  at  any  time  before  judgment,  must  be  allowed 


Chap.  10.]    CODE  OF  CIVIL  PKOCEDUKE.  83 

to  defend  the  action:  and,  except  in  an  action  for  divorce, 
the  defendant  against  whom  publication  is  ordered,  or 
his  representatives,  may  in  like  manner,  upon  good  cause 
shown,  be  allowed  to  defend  after  judgment,  or  at  any  time 
within  one  year  after  notice  thereof,  and  within  five 
years  after  its  rendition,  on  such  terms  as  may  be  just; 
and  if  the  defence  be  successful,  and  the  judgment  or 
any  part  thereof  shall  have  been  collected,  or  otherwise 
enforced,  such  restitution  may  thereupon  be  compelled 
as  the  court  may  direct;  but  title  to  property  sold  under 
such  judgment  to  a  purchaser  in  good  faith  shall  not 
be  thereby  affected. 

Utley  V.  Peters,  72—535. 

Sec.  221.    Actions  for  foreclosure  of  mortgage.    C.  C.  P., 
s.  86. 

In  actions  for  the  foreclosure  of  mortgages  on  real  es- 
tate, if  any  party  having  any  interest  in,  or  lien  upon, 
such  mortgaged  premises,  is  unknown  to  the  plaintiff,  and 
the  residence  of  such  party  cannot,  with  reasonable  dili- 
gence, be  ascertained  by  him,  and  such  fact  shall  be 
made  to  appear  by  affidavit  to  the  com't,  such  court  may 
grant  an  order  that  a  notice  be  served  on  such  un- 
known party  by  publishing  for  six  weeks,  once  in  each 
week  successively,  in  a  newspaper  printed  in  the  county 
where  the  premises  lie,  if  there  be  any ;  if  not,  then  in 
some  newspaper  published  in  Ealeigh,  which  publication 
shall  be  equivalent  to  a  personal  service  on  such  unknown 
party. 

Nimrock  v.  Scanlin,  87—119. 

Sec.  222.     Joint  and  several  debtors;  partners.     C.  C.  P., 

s.  87. 
Where  the  action  is  against  two  or  more  defendants, 
and  the  summons  is  served  on  one  or  more  of  them,  but 
not  on  all  of  them,  the  plaintiff  may  proceed  as  follows: 

(1)  If  the  action  be  agamst  defendants  jointly  indebted 
upon  contract,  he  may  proceed  against  the  defendants 
served,  unless  the  court  otherwise  direct,  and  if  he  recover 
judgment,  it  may  be  entered  against  all  the  defendants 
thus  jointly  indebted,  so  far  only  as  that  it  may  be  en- 
forced against  the  joint  property  of  all,  and  the  separate 
property  of  the  defendants  served,  and  if  they  are  sub- 
ject to  arrest,  against  the  persons  of  the  defendants 
served;  or, 

(2)  If  the  action  be  against  defendants  severally  liable, 


i84  CODE  OF  CIVIL  PEOCEDURE.     [Chap.  10 

he   may  proceed  against  the  defendants  served,  in  the 
same  manner  as  if  they  were  the  only  defendants; 

(3)  If  all  the  defendants  have  been  served,  judgment 
may  be  taken  against  any  or  either  of  them  severally, 
vs^hen  the  plaintiff  would  be  entitled  to  judgment  against 
such  defendant  or  defendants  if  the  action  had  been 
against  them  or  any  of  them  alone; 

(4)  If  the  name  of  one  or  more  partners  shall,  for  any 
cause,  have  been  omitted  in  any  action  in  which  judg- 
ment shall  have  passed  against  the  defendants  named  in 
the  summons,  and  such  omission  shall  not  have  been 
pleaded  in  such  action,  the  plaintiff  in  case  the  judgment 
therein  shall  remain  unsatisfied,  may  by  action  recover 
of  such  partner  separately,  upon  proving  his  joint  liabil- 
ity, notwithstanding  he  may  not  have  been  named  in  the 
original  action;  but  the  plaintiff  shall  have  satisfaction 
of  only  one  judgment  rendered  for  the  same  cause  of  ac- 
tion. 

Memin  v.  Ballard,  65—168;  Guano  Co.  v.  Willard,  73—531. 

Sec.  223.  Parties  not  summoned  in  action,  on  joint  con- 
tract, may  be  summoned  after  judgment.  C.  C.  P.,  s. 
318. 

Wl] en  a  judgment  shall  be  recoverel  against  one  or 
more  of  several  persons  jointly  indebted  upon  a  contract 
by  proceeding,  as  provided  in  the  preceding  section,  those 
who  were  not  originally  summoned  to  answer  the  com- 
plaint may  be  summoned  to  show  cause  why  they  should 
not  be  bound  by  the  judgment,  in  the  same  manner  as  if 
they  had  been  originally  summoned. 

Guano  Co.  v.  Willard,  73—521;  Lane  v.  Richardson,  79—159  ;  C.  C.  P., 
section  87,  Mauney  v.  Holmes,  87 — 438. 

Sec.  224.  Party  summoned  may  answer  or  defend.  C.  C. 
P.,  s.  322. 

Any  party  so  summoned  may  answer  within  the  time 
specified  denying  the  judgment,  or  setting  up  any  de- 
fence thereto  which  may  have  arisen  subsequently  to 
such  judgment:  aud  may  make  any  defence  which  he 
might  have  made  to  the  action  if  the  summons  had  been 
served  on  him  at  the  time  when  the  same  was  originally 
commenced  and  such  defence  had  been  then  interpor,ed 
to  such  action. 

Guano  Co.  v.  Willard,  73—531;  Maunoy  v.  Ilolmcs,  87—433. 

Sec.  225.  Subsequent  pleadings  and  proceedings  same  as 
in  action.    C.  C.  P.,  s.  323. 

The  party  issuing  the  summons  may  demur  or  reply  to 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDURE.  85 

the  answer,  and  the  party  summoned  may  demur  to  the 
reply  ;  and  the  issues  may  be  tried  and  judgment  may  be 
given  in  the  same  manner  as  in  an  action,  and  enforced 
by  execution,  if  necessary. 
MauuL'y  v.  Holmes,  87—428. 

Sec.  226.  Answer  and  reply  to  be  verified  as  in  action.    C. 
C.  P.,  s.  324. 

The  answer  and  reply  shall  be  verified  in  the  like  cases 
and  manner  and  be  subject  to  the  same  rules  as  the  an- 
swer and  reply  in  an  action. 

iliiuuey  V.  Holmes,  87—428. 

Sec.  227.  "When  service  complete.    C.  C.  P.,  s.  88. 

In  the  cases  in  which  service  by  publication  is  allowed, 
the  summons  shall  be  deemed  served  at  the  expiration  of 
the  time  prescribed  by  the  order  of  publication,  and  the 
party  shall  then  be  in  court. 

Kicliolsoa  V.  Cox,  83 — 44. 

Sec.  238.  Proof  of  service.    C.  C.  P.,  s.  89, 

Proof  of  the  service  of  the  summons  or  notice  must  be: 

(1)  By  the  certificate  of  the  sheriff  or  other  proper 
officer; 

(2)  In  case  of  pubhcation,  the  affidavit  of  the  printer, 
or  of  his  foreman  or  piincipal  clerk,  showing  the  same; 

(3)  The  written  admission  of  the  defendant. 

Hyman  v.  Jaraigan,  65— 9G;  Middleton  v.  Duffy,  73—72;  Bank  v,  Wil- 
son, 80—200;  Nicholson  V.  Cox,  83—44. 

Sec.  229.    Jurisdiction;  appearance,  notice  of  fispeneiens. 
C.  C.  P.,  s.  90. 

From  the  time  of  the  service  of  the  summons  in  a  civil 
action,  or  the  allowance  of  a  provisional  remedy,  the 
court  is  deemed  to  have  acquired  jurisdiction,  and  to  have 
control  of  all  subsequent  proceedings.  A  voluntary  ap- 
pearance of  a  defendant  is  equivalent  to  personal  service 
of  the  summons  upon  him.  In  an  action  affecting  the 
title  to  real  property,  the  plaintiff,  at  the  time  of  filing 
tne  complaint,  or  at  any  time  afterwards,  or  whenever  a 
warrant  of  attachment  shall  be  issued,  or  at  any  time 
afterwards,  the  plaintiff,  or  a  defendant  when  he  sets  up 
an  affirmative  cause  of  action  in  his  answer  and  demands 
substantive  relief,  at  the  time  of  filing  his  answer,  or  at 
any  time  afterwards,  if  the  same  be  intended  to  affect 
real  estate,  may  file  with  the  clerk  of  each  county  in 
which  the  property  is  situated,  a  notice  of  the  pendency 


86  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

of  the  action,  containing  the  names  of  the  parties,  the 
object  of  the  action,  and  the  description  of  the  property 
in  that  county  affected  thereby;  and  if  the  action  be  for 
the  foreclosure  of  a  mortgage,  such  notice  must  be  filed 
twenty  days  before  judgment,  and  must  contain  the  date 
of  the  mortgage,  the  parties  thereto,  and  the  time  and 
place  of  registering  the  same.  From  the  time  of  filing 
only,  shall  the  pendency  of  the  action  be  constructive 
notice  to  a  purchaser  or  incumbrancer  of  the  property 
affected  thereby;  and  every  person  vrhose  conveyance  or 
incumbrance  is  subsequently  executed  or  subsequently 
registered,  shall  be  deemed  a  subsequent  purchaser  or 
incumbrancer,  and  shall  be  bound  by  all  proceedings 
taken  after  the  filing  of  such  notice;  to  the  same  extent 
as  if  he  were  made  a  party  to  the  action.  For  the  pur- 
poses of  this  section,  an  action  shall  be  deemed  to  be 
pending  from  the  time  of  filing  such  notice:  Provided, 
that  such  notice  shall  be  of  no  avail  unless  it  shall  be 
followed  by  the  first  pubhcation  of  notice  of  the 
summons  or  by  an  order  therefor,  or  by  the  personal 
service  on  the  defendant  within  sixty  days  after 
such  filing.  And  the  court  in  which  the  said  action  was 
commenced  may,  in  its  discretion,  at  any  time  after  the 
action  shall  be  settled,  discontinued  or  abated,  on  appli- 
cation of  any  person  aggrieved,  and  on  good  cause  shown, 
and  on  such  notice  as  shall  be  directed  or  approved  by  the 
court,  order  the  notice  authorized  by  this  section  to  be 
canceled  of  record,  by  the  clerk  of  any  county  in  whose 
office  the  same  may  have  been  filed  or  recorded;  and  such 
cancelation  shall  be  made  by  an  indorsement  to  that  effect 
on  the  margin  of  the  record,  which  shall  refer  to  the 
order,  and  for  which,  the  clerk  shaU  be  entitled  to  a  fee 
of  twenty-five  cents. 

Toms  V.  Warson,  66 — 417;  Badger  v.  Daniel,  77 — 251;  Rollins  v.  Henry, 
78—343;  Todd  v.  Outlaw,  79—235;  Daniel  v.  Hodges,  87—95. 

Sec.  230.    Parties  may  apply  for  relief   to   tlie   superior 
court  in  vacation,  or  in  term  time.    1871-'2,  c.  3,  s.  1. 

In  all  cases  where  the  superior  court  in  vacation  has 
jurisdiction,  and  all  of  the  parties  unite  in  the  proceed- 
ings, they  may  apply  for  i-elief  to  the  superior  court  in 
vacation,  or  in  term  time,  at  their  election. 

Bank  v.  Wilson,  80—200. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDUEE. 


87 


Chap. 


TITLE  vn. 
THE  PLEADINGS  IN  CIYH  ACTIONS. 


I. 

II. 
III. 
IV. 

V. 


VI. 
VII. 


The  Complaint. 
The  Demukrer. 
The  Answer. 

TtTTT    T?FPIjY 

Duties  and  Powers  of  the  Clerk  in  Rela- 
tion TO  the  Pleadings  and  Collateral 
Matter. 

General  Rules  of  Pleading. 

Mistakes  in  Pleadings  and  Amendments. 


CHAPTER  ONE. 
THE    COMPLAINT. 


Section. 

231.  Forms  of  pleading. 

233.  Complaint. 

283.  Complaint,  what  to  contain. 

234.  Complaint  in  action  to  recover 

debt  contracted  for  the  pur- 
chase of  land,  what  to  set 
forth. 

235.  If  answer  denies  that  debt  was 


Section. 

contracted  for  purchase  of 
land,  Issue  to  be  submitted  to 
jury. 

236.  Form  of  judgment  and  execu- 

tion upon  judgment  for  plain- 
tiff. 

237.  Defendant  to  flic  bond  in  action 

for  real  property. 


Sec.  231.    Forms  of  Pleading.    C.  C.  P.,  s.  91. 

The  forms  of  pleading  in  civil  actions  in  courts  of 
record,  and  the  rules  by  which  the  sufficiency  of  the 
pleadings  is  to  be  determined,  are  those  prescribed  by 
this  Code. 

Crump  V.  Mims,  C4— 767;  Parsley  v.  Nicholson,  65—207;  Garrett  v. 
Trotter,  65—430;  Gates  v.  Gray,  66—443;  Moore  v.  Edmiston,  70—510; 
Pescud' V.  Hawkins,  71—299;  Bitting  v.  Thaxton,  73—541;  Moore  v. 
Hobbs,  79—535;  Jones  v.  Mial,  83—252;  Gorman  v.  Bellamy,  83-^96. 

Sec.  232.  Complaint.  C.  C.  P.,  s.  92. 

The  first  pleading  on  the  part  of  the  plaintiff  is  the 
complaint. 


88  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

Sec.  233.    Complaint,  what  to  contain.    C.  C.  P.,  s.  93.     • 

The  complaint  shall  contain: 

(1)  The  title  of  the  cause,  specifying  the  name  of  the 
court  in  which  the  action  is  hrought,  the  name  of  the 
county  in  which  the  trial  is  required  to  be  had,  and  the 
names  of  the  parties  to  the  action,  plaintiff  and  defend- 
ant; 

(2)  A  plain  and  concise  statement  of  the  facts  consti- 
tuting a  cause  of  action,  without  unnecessary  repetition; 
and  each  material  allegation  shall  be  distinctly  num- 
bered; 

HMikcy  V.  Houston,  C5— 137;  Garrett  v.  Trotter,  65 — 430;  Gates  v.  Gray, 
06—443;  Slielton  v.  Davis,  69—324;  Land  Co.  v.  Beattj',  69—329;  Mooro 
Y.  Hobbs,  77 — 6.5;  Com'rs  v.  McPhcrson,  79 — 524;  Moore  v.  ITobbs,  79 — 
535;  Boyden  v.  Acbenbach,  79 — 539;  Youiij;  v.  Younc-,  81 — 91;  Jones  v. 
Mial,  82—252;  Gormau  v.  BiUaray,  82-^96;  Womble  v.  Leach,  83—84; 
Johnston  v.  Pate,  83—110;  Brown  v.  Morris,  83—251. 

(.3)  A  demand  of  the  relief  to  which  the  plaintiff  sup- 
poses himself  entitled.  If  the  recover}'-  of  money  be  de- 
manded, the  amount  thereof  must  be  stated. 

DuDQ  V.  Barnes,  73—273;  Knight  v.'Houghtalling,  85—17. 

Sec.  2.34.  Complaint  In  action  to  recoTcr  debt  con- 
tracted for  the  purchase  of  land,  what  to  set  forth. 
1879,  c.  217. 

In  actions  for  the  recovery  of  a  debt  contracted  for  the 
purchase  of  land,  it  shall  be  the  duty  of  the  plaintiff  to 
set  forth  in  his  complaint  that  the  consideration  of  the 
debt  sued  on  was  the  purchase  money  of  certain  land, 
describing  said  land  in  an  intelligible  manner,  such  as 
the  number  of  acres,  how  bounded,  and  where  situated. 

Dail  V.  Sugg,  85—104. 

Sec.  235.  If  answer  denies  that  debt  was  contracted  for 
purchase  of  laud,  issue  to  be  submitted  to  jury.  1879, 
c.  217. 

If  the  defendant  shall  deny  in  his  answer,  that  the  ob- 
ligation sued  on,  was  for  the  purchase  money  of  the  land 
described  in  the  complaint,  it  shall  be  the  duty  of  the 
court  to  submit  the  issue  so  joined  to  the  jury. 

Sec.  236.  Form  of  judgment  and  execution,  upon  judg- 
ment for  plaintiff.     1879,  c.  217. 

If  the  answer  does  not  deny  the  said  allegation  so  set 
forth  in  the  complaint,  or  if  the  said  issue  shall  be  found 
by  the  jury  in  favor  of  the  plaintiff,  it  shall  be  the  duty 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  89 

of  the  court  to  have  embodied  in  the  judgment,  that  the 
debt  sued  on  was  one  contracted  for  the  purchase  money 
of  said  land,  describing  It  briefly;  and  it  shall  also  be  the 
duty  of  the  clerk  to  set  forth  in  the  execution,  that  the 
said  debt  was  one  contracted  for  the  purchase  of  said 
land,  the  description  of  which  shaU  be  set  out  briefly  as 
in  the  complaint. 
Durham  v.  Bostick,  73—353. 

Sec.  237.  Defendant  to  file  bond  in  action  for  real  prop- 
erty.   1869-'70,  c.  193,  s.l. 

In  all  actions  for  the  recovery  of  real  property,  or  for 
the  possession  thereof,  the  defendant,  before  he  is  per- 
mitted to  plead,  answer  or  demur,  shall  execute  and  file 
in  the  office  of  the  clerk  of  the  superior  court  of  the 
county  wherein  the  suit  is  pending,  an  undertaking  with 
good  and  suificient  surety,  in  an  amount  to  be  fixed  by 
the  court,  not  less  than  two  hundred  dohars,  to  be  void 
upon  condition  that  the  defendant  pay  to  the  plaintiff  all 
such  costs  and  damages  as  the  plaintiff  may  recover  in 
the  action,  including  damages  for  the  loss  of  rents  and 
profits:  Provided,  that  no  such  undertaking  shall  be  re- 
quired if  an  attorney  practicing  in  the  court  wherein  the 
action  is  pending  will  certify  to  the  court  in  \mting  that 
he  has  examined  the  case  of  the  defendant,  and  is  of  the 
opinion  that  the  plaintiff  is  not  entitled  to  recover;  and 
if  the  defendant  will  also  file  an  affidavit,  stating  that  he 
is  not  worth  the  amount  of  said  undertaking,  in  any 
property  whatsoever,  and  is  unable  to  give  the  same. 

Harkey  v.  Houston,  65 — 187;  Deal  v.  Palmer,  68 — 215;  Jones  v.  Fortune, 
69—323;  Justice  v.  Eddings,  75—581;  Rollins  v.  Heniy,  77—467;  EoUins 
V.  Henry,  84^569. 


CHAPTER  TWO. 
THE  DEMUEEEE. 


Section. 

288.  Defendant  to  demur  or  answer. 

289.  When  defendant  may  demur. 
240.  Demurrer  must  specify  grounds 

of  objection. 


Section. 

241.  Objection    not    appearing    on 
complaint. 

242.  Objectionwhen  deemed  waived. 


Sec.  238.  Defendant  to  demur  or  answer.  C.  C.  P.,  s.  94. 

The  only  pleading  on  the  part  of  the  defendant  is 


90  CODE  OF  CIVIL  PEOCEDURE.     [Chap.  10. 

either  a  demurrer  or  an  answer.  If  the  plaintiff  shall 
have  failed  to  file  his  complaint  within  the  time  limited 
for  the  purpose,  the  defendant  may  move  for  judgment 
of  non-suit. 

Eyman  v.  Devcreux,  03—624;  Ransom  v.  JlcClces,  G4 — 17;  McKesson  v. 
Slcnilcnhall,  04 — 503;  Harris  v.  Johnson,  05 — 478;  Andrews  v.  Pritclielt, 
6G— 387;  Gates  v.  Gray,  OG— 442;  Pescud  v.  Hawkins,  71—299;  Green  v. 
R.  R.  Co.,  73— 534;  VonGlilan  v.  DeHossctt.  70—292;  Pearcc  v.  Alason, 
78—37;  McClenahaa  v.  Coltcn,  83—333;  Finch  v.  Baskerville,  85—305. 

Sec.  239.  When  defendant  may  demur.    C.  C.  P.,  s.  95. 

The  defendant  may  demur  to  the  complaint  when  it 
shall  appear  upon  the  face  thereof,  either: 

Love  V.  Com'rs.,  04—700;  Walston  v.  Bryan,  04—704;  Lewis  v:  McNatt, 
65—03;  Jllci-vin  v.  Ballard,  05-108;  Merwiii  v.  Ballard,  OG— 398;  Davidson 
V.  Elms,  07—338;  Green  v.  Green  69—394;  Land  Co.  v.  Bcatly,  69—329; 
Hars^'ovc  v.  Hunt,  73—34;  Dunn  v.  Barnes,  73—273;  Green  v.  R.  U.  Co., 
73—524;  Sloan  v.  McDowell,  75—29;  Cowan  v.  Baird,  77—201. 

(1)  That  the  court  has  no  jurisdiction  of  the  person  of 
the  defendant,  or  of  the  subject  of  the  action;  or 

Jacobs  V.  Smallwood,  03—112;  Rives  v.  Williams,  03—128;  Uolt  v.  Ise- 
ley,  63 — 129;  Swepson  v.  Chapman,  03 — 130;  Wallonv.  McKesson,  04 — 77; 
Winslow  V.  Com'rs.  64r-318;  Bank  v.  Britton,  66—365;  Winslow  v.  Wcith, 
66 — 432;  Flack  v.  Dawson,  09 — 42;  Green  v.  Green,  09—294;  Hodge  v. 
Hodge,  73—060;  McFarland  v.  McKay,  74— 258 ;  Oliver  v.  Wiley,  75—320; 
Fiuley  V.  Ilaycs,  81—368;  Capps  v.  Capps,  85—408;  Pearson  v.  Boyden,  86 
— 585;  Hawkins  V.  Hughes,  87—115. 

(2)  That  the  plaintiff  has  not  legal  capacity  to  sue;  or 

Peebles  v.  Ncwsom,  74 — 473;  Gordon  v.  Lowther,  75 — 193. 

(3)  That  there  is  another  action  pending  between  the 
same  parties  for  the  same  case;  or 

Harris  v.  Johnson,  65 — 478;  Woody  v.  Jordan.  69-189;  Burns  v.  Ash- 
-worth,  72—496;  Glenn  v.  Bank,  73—026;  Righton  v.  Pruden,  73—61 ;  Dunn 
V.  Barnes,  73—373;  Green  v.  R.  R.  Co.,  73—524;  Sloan  v.  McDowell,  75— 
29;  Smith  v.  Jloorc,  79  -82;  Tuttlc  v.  Harrell,  85—456;  Webster  v.  Laws, 
86—178;  Hawkins  V.  Hughes,  87—115. 

(4)  That  there  is  a  defect  of  parties  plaintiff  or  defend- 
ant; or 

Lewis  V.  McKatt,  65—03;  Merwin  v.  Ballard,  05—168;  Gudger  v.  Baird, 
66—433;  Davidson  v.  Elms,  67-228;  Flack  v.  Dawson,  69—42;  Rowland 
V.  Gardner,  69—53;  Green  v.  Green,  69—394;  Wilson  v.  Arcntz,  70—070; 
nargriivc  v.  llilliard,  72—109;  Burns  v.  Ashworlh,  72 — 496;  Goodman  v. 
Goodman,  72—508;  Wilson  v.  Bank,  72—021;  Hargrove  v.  Hunt,  73—24; 
Righton  V.  Pruden,  73—01;  Von  Glilan  v.  Harris,  73—323;  Buic,  v.  B.  &  L. 
A.,  74—117;  McFarland  v.  McKay,  74—258;  Peebles  v.  Ncwsom,  74—473; 
McMillan  v.  Edwards,  75—81;  Oliver  v.  Wiley.  7.j— 320;  Gastcr  v.  Hardic. 
75 — 160;  Gill  V.  Young,  82—273;  Hoover  v.  Berrybill,  84—133;  McCormac 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDURE.  91 

V.  "Wiggins,  84—378;   Bronson  v.  Insurance  Co.,  85^11;  Lcacb  v.  Flem- 
ming,  85 — 447;  Mebanc  v.  Laylon,  80—571. 

(.5)  That  several  causes  of  action  have  been  improperly 
united;  or 

Land  Co.  v.  Beatly,  09— 339;  "Wootcn  v.  INIanlfsby,  09—403;  Edgertonv. 
Powill.  73— C4;  Adams  v.  Quinn,  74—359;  McMillan  v.  Ednards,  75-81; 
Bank  v.  Harris,  84—300;  Fincli  v.  Baskervillc,  85—305;  Symc  v.  Blunting, 
80—175;  England  v.  Garner,  80-300. 

(6)  That  the  complaint  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action. 

Foard  v.  Alexander,  04—09;  Leak  v.  Com'rs,  64—133;  Harshaw  v.  Dob- 
son,  04—384;  WliitaUcr  v.  Forbes,  08—238;  Co.x  v.  Long,  CO— 7;  King  v. 
Weeks,  70—372;  Howie  v.  Kea.  70—559;  Wilson  v.  Arentz.  70—670;  T-ally 
V.  Reid,  73—330;  Jones  v.  Com'rs,  73—183;  Haywood  v.  Rogers,  73-330; 
Wall  V.  Fairley,  73—404;  Barnes  v.  Insurance  Co.,  74—33;  Womble  v.  Lit- 
tle, 74—355;  Adams  v.  Quinn,  74—359;  Gordon  v.  Lowtber,  75-193; 
Powell  V.  Allen,  75—450;  University  v.  R.  R.  Co.,  76—103:  Litllejobn  v. 
Edgerton,  76—408;  Bum  pass  v.  Cliambers,  77—357;  Nelberton  v.  Candler, 
78—88;  Com'is  v.  McPberson,  79-534;  Moore  v.  Ilobbs,  79—535;  New- 
hart  V.  Peters,  80—160;  Wilson  v.  Lincbergcr,  83—413;  Johnston  v.  Pate, 
83—110;  Alexander  v.  Wolfe,  83—373;  Foy  v.  Haugliton,  83—467;  Hurst 
V.  Addington,  84—143;  George  v.  High,  85—99;  Lowery  v.  Perry,  85—131; 
Bank  v.  Bogle,  85—203;  Oldham  v.  Bank,  85—340;  Jones  v.  Com'rs,  85— 
278;  Tucker  v.  Baker,  86—1. 

Sec.  240.  Dcmurrermnst  specify  grounds  of  objection.  C. 
C.  P.,  s.  90. 

The  demurrer  shall  distinctly  specify  the  grounds  of  ob- 
jection to  the  complaint.  Unless  it  does  so,  it  may 
be  disregarded.  It  may  be  taken  to  the  whole  com- 
plaint, or  to  any  of  the  alleged  causes  of  action  stated 
therein. 

Ransom  V.  McClces,  64— 17:  Clark  v.  Clark,  64— 150;  Love  v.  Com'rs, 
04—706;  Crump  v.  Jlimms,  64—707;  Garrett  v.  Trotter,  05—430;  State  v. 
Young,  05—579;  George  v.  High,  85—90;  Bank  v.  Bogle,  85—303;  Finch 
T.  Baskervillc,  85—305;  Johnston  v.  Smith,  80—498. 

Sec  241.  Objection  not  appearing  on  complaint.  C.  C.  P., 
s.  98. 

When  any  of  the  matters  enumerated  as  grounds  of 
demurrer  do  not  appear  on  the  face  of  the  complaint,  the 
objection  may  be  taken  by  answer. 

Lewis  V.  McNatl,  65-03;  Durham  v.  Bostick,  72—353;  Burns  v.  Ash- 
worth,  73—496;  Tucker  v.  Baker.  86—1. 

Sec.  243.  Objection  when  deemed  waived.  C.  C.  P.,  s.  99. 

If  no  such  objection  be  taken  either  by  demurrer  or  an- 


92  CODE  OF  CIVIL  PROCEDURE.    [Chap.  10. 

swer,  the  defendant  shall  be  deemed  to  have  waived  the 
same,  excepting  only  the  objection,  to  the  jurisdiction  of 
the  court,  and  the  objection,  that  the  complaint  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action. 

Ransom  v.  McClees,  64r-:i7;  Love  v.  Com'rs,  G4— 706;  Lewis  v.  McNatt, 
65—63;  Garrett  V.  Trotter,  65— iSO;  Pescud  v.  Hawkins,  71—299;  Duiliam 
V.  Bosticlc,  72—353;  Burns  v.  Asbworth,  72 — i96;  McDougald  v.  Graham, 
75— 310;  Moore  V.  Hobbs,  77—65;  Pearce  v.  Mason,  78—87;  Young  v. 
Young,  81—91;  Bryant  v.  Fisher,  85—71;  Finch  v.  Baskervillc,  85—305; 
Jones  V.  Com'rs,  85— 278;  Tucker  v.  Baker,  86—1;  Hawkins  v.  Hughes, 
87—115. 


CHAPTER  THREE. 
THE  ANSWEE. 

Section.  1  Section. 

243.  Answer;  what  to  contain.  246.  Demurrer  and  answer. 

244.  Counter-claim.  247.  Sham  and  irrelevant  defences. 

245.  Several  defences.  I 

Sec.  243.  Answer;  what  to  contain.    C.  C.  P.,  s.  lOO. 

The  answer  of  the  defendant  must  contain  : 

(1)  A  general  or  specific  denial  of  each  material  allega- 
tion of  the  complaint  controverted  by  the  defendant,  or 
of  any  knowledge  or  information  thereof,  sufficient  to 
form  a  belief  ; 

Erwin  v.  Lowry,  64^321;  Garrett  v.  Trotter,  65—430;  "Walsh  v.  Hall, 
66—233;  Swepson  v.  Harvey,  66 — 436;  Flack  v.  Dawson,  69 — 42;  Howie  v. 
Rea,  70—559;  Schehan  v.  Malone,  71—440;  Bitting  v.  Thaxton,  72—541; 
.Johnson  v.  Bell,  74—355;  Bank  v.  Charlotte,  75—45;  Hcyer  v.  neatty,76— 
28;  Boyctt  v.  Vaughn,  79—538;  Hull  v.  Carter,  83—249;  Graybcal  v.  Pow- 
ers,  83—561;  Durden  v.  Simmons,  84—555;  Hull  v.  Carter,  86—522. 

(2)  A  statement  of  any  new  matter  constituting  a  de- 
fence or  counter-claim,  in  ordinary  and  concise  language, 
without  repetition. 

Gaither  v.  Gibson,  63—93;  Harriss  v.  Burwell,  65—584;  Walsh  v.  Hall, 
66—233;  Martin  v.  Richardson,  68—255;  Utky  v.  Foy,  70—303;  Sloan  v. 
McDowell,  71— 356;  Hall  v.  Com'rs,  74—130;  Johnson  v.  Bell,  74—355; 
Francis  v.  Edwards,  77—271;  Kitchen  v.  "Wilson,  80—191;  Hull  v.  Carter, 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDUEE.  93 

83_349;  Holliday  v.  McMillan,  83— 370;  McClennahan  v.  Cotton,  83—332; 
Bank  v.  Byiium,  84—24;  Reed  v.  Exum.  84 — 430;  Brown  v.  Brittain,84— 553; 
Durdm  V.Simmons,  84L-555;  Scott  v.  Battle,  85—184;  Odom  v.  Bank, 
85—241;  Boyett  V.  Vaughn,  85—363;  Meneely  v.  Craven,  86—364;  Love 
V.  Kliyne,  86—576. 

Sec.  244.  Counter-claim.    C.  C.  P.,  s.  lOl. 

The  counter-claim  mentioned  in  the  preceding  section 
must  be  one  existing  in  favor  of  a  defendant,  and  against 
a  plaintiff,  between  whom  a  several  judgment  might  be 
had  in  the  action,  and  arising  out  of  one  of  the  following 
causes  of  action. 

(1)  A  cause  of  action  arising  out  of  the  contract  or 
transaction  set  forth  in  the  complaint  as  the  foundation 
of  the  plaintiff's  claim,  or  connected  with  the  subject  of 
the  action ; 

Hogan  v.  Kirkland,  64—250;  McKesson  v.  Mendenhall,  64—286;  Russell 
V.  Adderton,  64 — 417;  Pearsall  v.  Mayers,  64—549;  Harshaw  v.  Woodfin, 
64— 568;  Jolinsonv.  Mc Arthur,  64r-675;  Neal  v.  Lea,  64—678;  Mann  v. 
Blount.  65—99;  Battle  v.  Thompson,  65—406;  Harris  v.  Burwen,65— 584; 
Street  v.  Bryan,  65—619;  Clark  v.  Clark,  6.5—655;  Ivey  v.  Cranberry, 
66— 224;  Walsh  V.Hall,  66— 233;  Terrell  v.  Walker,  66—244;  Burton  v. 
Wilkes,  66—604;  Bank  v.  Tiddy,  67—169;  Blount  v.  Windley,  68—1; 
Flack  v.  Dawson,  69—43;  Woody  v.  Jordan,  69—189:  Winslow  v. 
Wood,  70—430;  Johnson  v.  Keimeday,  70—435;  Howie  v.  Rea,  70— 
559;  Lusk  V.  Fatten,  70—701;  Bitting  v.  Thaxton,  73—541;  Johnson 
V.  Bell,  74—355;  State  v.  Quinn,  74—359;  Faison  v.  Johnson,  78—78 
Mauney  v.  Ingram,  78—96;  Whedbee  v.  Reddick,  79—531;  Boyett  v 
Vaughan,  79—528;  Johnston  v.  Rowland,  80—1 ;  Thomas  v.  Simpson,  80—4 
Pernall  v.  Vaughan,  80—46;  Walker  v.  Dicks,  80—363;  Devries  v.  War 
ren,  83—356;  Hull  v.  Carter,  83—249;  McClenahan  v.  Cotten,  83—333 
Scott  V.  Timberlake,  83—383;  Derr  v.  Stubbs,  83— 539 ;  Boyett  v.  Vaughan, 
85—363;  Barbce  v.  Green,  86— 158;  Meneely  v.  Craven,  86—364;  Reynolds 
V.  Smathers,  87—24. 

(2)  In  an  action  arising  on  contract,  any  other  cause 
of  action,  arising  also  on  contract,  and  existing  at  the 
commencement  of  the  action. 

Ransom  v.  McClees,  64—17;  McKesson  v.  Mendenhall,  64— 286;  Johnston 
V.  Lea,  64— 678;  Riddick  v.  Moore,  65—383;  McLean  v.  Leach,  68—95; 
Sloan  V.  McDowell,  71—356;  Daniel  v.  Crumpler,  75—184;  Hull  v.  Carter, 
83—249;  McClenahan  v.  Cotten,  83—332;  Barbee  v.  Green,  86—158;  Rey- 
nolds V.  Smathers,  87—24;  Postou  v.  Rose,  87—279. 

Sec.  245.  Several  Defences.    C.  C.  P.,  s.  102. 

The  defendant  may  set  forth  by  answer  as  many 
defences  and  counter-claims  as  he  may  have,  whether 
they  be  such  as  have  been  theretofore  denominated  legal, 
equitable,  or  both.     They  must  each  be  separately  stated 


94  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

and  numbered,  and  refer  to  the  cause  of  action  which 
they  are  intended  to  answer,  in  such  manner  that  they 
may  be  intelligibly  distinguished. 

Sumner  v.  Sliipmaii,  C5— G23;  Clark  v.  Clark.  G5— 655;  Walsh  v.  Hall, 
68—233;  Hutchiuson  v.  Smith,  G8— 351;  Ten  Brocck  v.  Orchard,  79—518; 
Melvin  v.  Stephens,  83—283. 

Sec.  24G.  Demurrer  and  answer.    C.  C  P.,  s.  103. 

The  defendant  may  demur  to  one  or  more  of  several 
causes  of  action  stated  in  the  complaint,  and  answer  to 
the  residue. 

State  V.  Young,   65—579;  VonGIahn  v.  DeRossett,  76—293. 

Sec.  247.  Sbam  and  irrelevant  defences.    C.  C.P.,  s.    104. 

Sham  and  irrelevant  answere  and  defences  may  be 
stricken  out  on  motion,  and  upon  such  terms  as  the 
court  may  in  its  discretion  impose. 

Erwiu  v.Lowery,  04—321 ;  Swcpson  v. Harvey,  66 — 436;  Flack  v.  Dawson, 
69—42;  Moore  v.  Edmlston,  70—510;  Scliehan  v.  Mulone,  71—440;  Com'rs 
V.  Piercy,  73—181;  Dunn  v.  Barnes,  73—373;  Bank  v.  Charlolte;  75—45; 
Cowan  V.  Baird,  77—301;  Long  v.  Bank.  81 — 41;  Rowland  v.  Windlcy,  82— 
131;  Hull  V.  Carter,  83—249;  Brogdcn  v.  Henry,  83—374;  Foy  v. 
Haughton,  83 — 467;  Boone  v.  Ilardic,  83 — 470;  Hurst  v.  Addington,  84r— 
143;  Best  v.  Clyde,  86—4;  Howell  v.  Ferguson,  87—113. 


CHAPTER  FOUR. 
THE  EEPLY. 


Section. 

348.  Reply;  demurrer  to  answer. 
249.  Motion    for   judgment  ou    an- 
swer. 


Section. 

350.  Demurrer  to  reply. 


Sec.  248.  Reply;  demurrer  to  an.swer.    C.  C.  P.,  s.  105. 

When  the  answer  contains  new  matter  constituting  a 
counter-claim,  the  plaintiff  may  reply  to  such  new  mat- 
ter, denying  generally  or  specifically  each  allegation  con- 
troverted by  him  or  any  knowledge  or  infoimation  there- 
of sufficient  to  form  a  belief;  and  he  may  allege,  in  or- 
dinary and  concise  language,  without  repetition,  any  new 
matter  not  inconsistent  with  the  complaint,  constituting 
a  defence  to  such  new  matter  in  the  answer;  and  the 
plaintiff  may  in  all  cases  demur  to  an  answer  containing 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDUEE.  95 

new  matter,  where,  upon  its  face,  it  does  not  constitute 
a  counter-claim  or  defence;  and  the  plaintiff  may  demur 
to  one  or  more  of  such  defences  or  counter-clanns,  and 
reply  to  the  residue  of  the  counter-claims.  And  in  other 
cases,  when  an  answer  contains  new  matter  constituting 
a  defence  by  way  of  avoidance,  the  court  may  in  its  dis- 
cretion, on  the  "defendant's  motion,  require  a  reply  to 
such  new  matter;  and  in  that  case,  the  reply  shall  be 
subject  to  the  same  rules  as  a  reply  to  a  counter-clauu. 

Culver  V.  Eggers,  63—630;  Harris  v.  Johnson,  05—478;  Blackwell  v. 
•Willard,  63— 555;  University  v.  Mclver,72— 76;  People  v.  Hilliard,72— 169; 
Lee  V.  Benman,  73—410;  Tucker  v.  City  of  Raleigh,  75—267;  Boyett  v. 
Vauglian,  79—528;  Jones  v.  Cohen,  82—75;  Foy  v.  Haughton,  83—467; 
Earnhardt  v.  Smith,  86—473. 

Sec.  249.  Motion  for  judgment  on  answer.  C.  C.  P.,  s. 
106. 
If  the  answer  contain  a  statement  of  new  matter  con- 
stituting a  counter-claim,  and  the  plaintiff  fail  to  reply 
or  demur  thereto,  the  defendant  may  move  for  such 
judgment  as  he  is  entitled  to  upon  such  statement;  and 
if  the  case  require  it,  an  order  for  an  inquiry  of  damages, 
by  a  jury,  may  be  made. 

Earnhardt  v.  Smith,  86—473. 
Sec.  250.   Demurrer  to  reply.    C.  C.  P.,  s.  107. 

If  a  reply  of  the  plaintiff  to  any  defence  set  up  by  the 
answer  of  the  defendarit  be  insufficient,  the  defendant 
may  demur  thereto,  and  shall  state  the  grounds  thereof. 


CHAPTEE  FIVE. 

DUTIES  AND  POWEKS  OF  THE  OLEEK  IN  EELATION 
TO  THE  PLEADINGS  AND  COLLATEKAL  MATTEK. 


Section. 

254.  Duty  of  clerk  on  appeal  prayed. 

255.  Duti  of  judge  on  appeal. 

256.  Judgment  on  matter  of  law  may 
be  ai^pealed  from. 


Section. 

251.  Jurisdiction  of  clerk  on  plead- 

ings. &c. 

252.  Any  party  may  appeal. 

253.  Appeals,  when  taken,  and   by 

whom. 

Sec.  251.    Jurisdiction  of  clerk  on  pleadings,   &c.     C.  C. 
P.,  s.  108. 

The  clerk  of  the  superior  court  shall  have  jurisdiction 


96  CODE  OF  CIVIL  PEOCEDUEE.     [Chap.  10. 

to  hear  and  decide  all  questions  of  practice  and  procedure 
in  this  court,  and  all  other  matters  whereof  jurisdiction 
is  given  to  the  superior  court,  unless  the  judge  of  said 
court,  or  the  court  at  a  regular  term  thereof,  be  expressly 
referred  to. 

McAdoo  V.  Benbow,  63 — i61;  McAdoo  v.  Banister,  63 — 478;  Johnson  v. 
Judd,  63—498;  Tate  v.  Powe,  64r— 644;  Marsh  v.  Cohen,  68—283;  Com'ra 
V.  Blackburn,  68 — 406;  Brendle  v.  Heron,  68—496;  Bryan  v.  Hubbs,  69— 
423;  Palmer  V.  Bosher,  71—391;  McKethan  v.  McNeill,  74—663. 

Sec.  252.    Any  party  may  appeal.    C.  C.  P.,  s.  109. 

Any  party  may  appeal  from  any  decision  of  the  clerk 
of  the  superior  court,  on  an  issue  of  law  or  legal  inference 
to  the  judge  without  undertaking. 

Capps  V.  Capps,  85 — 408. 

Sec.  253.    Appeals,  when  taken,  and  by  whom.   C.  C.  P.,  s. 
492. 

An  appeal  must  be  taken  within  ten  days  after  the  en- 
try of  the  order  or  judgment  of  the  court;  but  an  appeal 
can  only  be  taken  by  a  party  aggrieved,  who  appeared 
and  moved  for  or  opposed  the  order  or  judgment  appealed 
from,  or  who  being  entitled  to  be  heard  thereon,  had  no 
notice  or  opportunity  to  be  heard;  which  fact  may  be 
shown  by  affidavit  or  other  proof. 

Sec.  254.    Duty  of  clerk  on  appeal  prayed.    C.  C.  P.,  s. 
110, 

On  such  appeal,  the  clerk,  within  three  days  thereafter, 
shall  prepare  a  statement  of  the  case,  of  his  decision,  and 
of  the  appeal,  and  shall  sign  the  same;  he  shall,  within 
the  time  aforesaid,  exhibit  such  statement  to  the  parties 
or  their  attorneys  on  request;  if  such  statement  is  satis- 
factory, the  parties  or  their  attorneys  shall  sign  the 
same;  if  either  party  object  to  the  statement  as  partial  or 
erroneous,  he  may  put  his  objections  in  writing,  and  the 
clerk  shall  attach  such  writing  to  his  statement,  and 
within  two  days  thereafter  he  shall  send  such  statement, 
together  with  the  objections,  and  copies  of  aU  necessary 
papers,  by  mail  or  otherwise,  to  the  judge  residing  in  the 
district,  or  in  his  absence  to  the  judge  holding  the  courts 
of  the  district  for  his  decision. 

McAden  V.  Banister,  63—478;  Rowland  v.  Thompson,  64—714;  Bear  v. 
Cohen,  65—511;  Myers  v.  Hamilton.  65—567;  Morris  v.  Wliitehead, 
65—637;  Westcott  v.  "Hewlett,  67—191;  Lovinier  v.  Pearce,  70—167;  Jones 
V.  Hemphill,  77—43. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  97 

Sec.  255.  Duty  of  judge  on  appeal.    C.  C.  P.,  s.  113. 

It  shaU  be  the  duty  of  the  judge  on  receivhig  a  state- 
ment of  appeal  froui  the  clerk,  or  the  copy  of  the  record 
of  an  issue  of  law,  to  decide  the  questions  presented 
within  ten  davs.  But  if  he  shall  have  been  informed  in 
writing,  by  the  attorney  of  either  party,  that  he  desires 
to  be  heard  on  the  questions,  the  .Hg^  f  all  hx  a  time 
and  place  for  such  hearing,  and  give  the  attorneys  of  both 
parties  reasonable  notice  thereof.  He  shall  transmit  his 
decision  in  writing,  endorsed  on,  or  attached  to  the 
Sd,  to  the  clerk'of  the  court,  who  shall  immediately 
Acknowledge  the  receipt  thereof,  and  withm  three  days 
after  such  receipt,  notify  the  attorneys  of  the  parties,  of 
the  decision,  and  on  request,  and  the  Pajment  of  his 
legal  fees,  give  them  a  copy  thereof;  and  the  parties 
receiving  such  notice  may  proceed  thereafter  accordmg 
to  law. 

Jones  V.  Hemphill,  77-43;  Capps  v.  Capps,  85-408. 

Sec.  356.    Judgment  on  matter  of  law  may  be  appealed 
from.    C.  C.  P.,  s.  116. 

Any  party  within  ten  days  after  notice  of  such  judg- 
ment, may  appeal  to  the  supreme  court  of  the  state  from 
such  udgmekt,  upon  any  matter  of  law  or  legal  inter- 
ence  therein,  under  the  regulations  provided  tor  ap- 
peals in  other  cases.  But  execution  shall  not  be  suspended 
until  the  undertakings  required  by  this  code  shall  have 
been  ^^iven.  If  issues,  both  of  law  and  of  fact,  or  issues 
of  fac^t  only,  are  raised  before  the  clerk  of  the  superior 
court,  he  shall  transfer  the  case  to  the  civil  issue  docket 
for  trial  of  the  issues  at  the  ensuing  term  of  the  superior 
court. 

Jones  V.  Hemphill,  77—43. 


CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 


CHAPTER  SIX. 
GENEEAL  EULES  OF  PLEADING 


Suction. 

257.  Pleadings  to  be  subscribed  and 

verified. 

258.  Pleadings,  how  verified. 

259.  Items  of  account ;  particulars  to 

be  furnished,  when. 

260.  Pleadings,  how  construed. 
201.  Irrelevant  or  redundant;  inde- 
finite or  uncertain. 

262.  Judgments,  how  to  be  pleaded. 
203.  Conditions   precedent,    how  to 


Section. 

be    pleaded;     instrument    for 
payment  of  money  only, 

264.  Private  statutes,  how  pleadp<i. 

265.  Libel   and  slander,  how  stated 

in  complaint. 

266.  Answer  in  such  cases, 

267.  What    causes    of    action    may 

be   Joined   in   the   .same   com- 
plaint. 

268.  Allegation  not  denied,  when  to 

be  deemed  true. 


Sec.  257.  PIeading.s  to  be  subscribed  and  verified.    C.  C. 
P.,  s.  IIO. 

Every  pleading  in  a  court  of  record  must  be  sub- 
scribed by  the  party  or  his  attorney;  and  when  any 
pleading  is  verified,  every  subsequent  pleading,  exrep't 
a  demurrer,  must  be  verified  also. 

Haywood  v.  Bryan,  63—521;  Rankin  v.  Allison,  64—673;  Ilarkcy 
V.  Houston,  65—137;  Cowles  v.  Hardm,  79—577. 


Sec.  258.  Pleadings,  how  verified.    C.  C.  P.,  s.  117.  18G8- 
'9,  c.  159,  s.  7. 

The  verification  must  be  to  the  effect  that  the  same  is 
true  to  the  knowledge  of  the  person  making  it,  except  a.s 
to  those  matters  stated  on  information  and  belief,  and  as 
to  tho.se  matters  he  believes  it  to  be  true;  and  must  be  by 
affidavit  of  the  party,  or  if  there  be  several  parties  united 
in  interest,  and  pleading  together,  by  one  at  least  of 
such  parties  acquainted  with  the  facts,  if  such  party  be 
within  the  county  where  the  attorney  resides,  and 
capable  of  making  the  affidavit.  The  affidavit  may  also 
be  made  by  the  agent  or  attorney,  if  the  action  or 
defence  be  founded  upon  a  written' instrument  for  the 
payment  of  money  only,  and  such  instrument  be  in  tlie 
possession  of  the  agent  or  attorney,  or  if  all  the  material 
allegations  of  the  pleading  be  within  the  personal  knowl- 
edge of  the  agent  or  attorney.  When  the  pleading  is 
verified  by  any  other  person  than  the  party,  he  shall  set 
forth  in  the  affidavit  his  knowledge,  or  the  grounds   of 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDURE.  99 

his  belief  on  the  subject,  and  the  reasons  why  it  is  not 
made  by  the  party.  When  a  corporation  is  a  party,  the 
verification  may  be  made  by  any  ofhcer  thereot;  and 
when  the  state,  or  any  officer  thereof  m  its  behalf,  is  a 
party,  the  verification  may  he  made  by  any  person  ac- 
quainted with  the  facts.  The  verification  may  be  omit- 
ted when  an  admission  of  the  truth  of  the  allegation 
niiaht  subject  the  party  to  prosecution  tor  felony.  And 
no  pleading  can  be  used  in  a  criminal  prosecution  against 
the  party,  as  proof  of  a  fact  admitted  or  alleged  m  such 
pleading  Any  judge,  or  clerk  of  the  superior  court, 
notary  public,  or  justice  of  the  peace,  shall  be  competent 
to  take  affidavits  for  the  verification  of  pleadmgs,  in  any 
court  or  county  in  the  state,  and  for  general  purposes. 

Benedict  V.  Hall,  76-113;  Paige  v.  Price,  78-10;  Alspaughv.  Winstead, 
79-520;  Cowles  v.  Hardin,  79-577;  Brufl  v.  Stero,  81-183;  .Johnson  v. 
Maxwell,  87—18;  Bank  v.  Hutchison,  87—33, 

Sec.  259.   Items  of  account;  particulars  to  be  furnished, 
when.    C.  C.  P.,  s.  118. 

It  shall  not  be  necessary  for  a  party  to  set  forth  in  a 
pleading  the  items  of  an  account  therein  alleged;  but  he 
shall  deUver  to  the  adverse  party,  withm  ten  days  after 
a  demand  thereof  in  writing,  a  copy  of  the  account, 
which  if  the  pleading  is  verified,  must  be  verified  by  his 
own  oath,  or  that  of  his  agent  or  attorney,  if  withm  the 
personal  knowledge  of  such  agent  or  attorney,  to  the 
effect  that  he  believes  it  to  be  true,  or  be  precluded  troni 
givino-  evidence  thereof.  The  court  or  the  judge  thereot 
may  order  a  further  account  when  the  one  delivered  is 
defective;  and  the  court  may,  in  all  cases,  order  a  bill 
of  particulars,  of  the  claim  of  either  party  to  be  fur- 
nished. 

See.  260.    Pleadings,  how  construed.    C.  C.  P.,  s.  119. 

In  the  construction  of  a  pleading  for  the  purpose  of  de- 
termining its  effect,  its  allegations  shall  be  liberally  con- 
strued, with  a  view  of  substantial  justice  between  the 
parties. 

Wright  V.  McCorraick,  67—37;  Moore  v.  Bdmiston.  70—510;  Com'rs  v. 
Piercy,  72 — 181;  .Joues  v,  Com'rs,  73—182. 

Sec.  261.    Irrelevant  or  redundant;   indefinite  or  uncer- 
tain.   C.  C.  P.,s.  120. 

If  irrelevant  or  redundant  matter  be  inserted  in  a 
pleading,  it  mav  be  stricken  out,  on  motion  of  any  person 
ago-rieved  thereby,  but  this  motion  must  be  made  before 


100  CODE  OF  CIVIL  PROCEDUEE.     [Chap.  10. 

answer  or  demurrer,  or  before  an  extension  of  time  to 
plead  IS  granted.  And  when  the  allegations  of  a  plead- 
ing are  so  indefinite  or  uncertain  that  the  precise  nature 
of  the  charge  or  defence  is  not  apparent,  the  court  may 
requn-e  the  pleading  to  be  made  definite  and  certain  by 
amendment. 

Eiwia  V.  Lowry,  64—331;  Swepson  v.  Harvey,  66— 43G;  Flack  v.  Daw- 
son, G9— 42;  Moore  v.  Edmiston,  70—510;  ScUdiau  v.  Malone,  71—440; 
Com'rs  V.  Piercy,  72—181:  Jones  v.  Com'rs,  73—182;  WomWe  v.  Fraps,' 
77—198;  Ten-Broeck  v.  Orchard,  79—518;  Dail  v.  Harper,  83—4;  Hull 
V.  Carler,  83—249;  Brogden  v.  Henry,  83—374;  Boon  v.  Hardle,  83-^70- 
Best  V.  Clyde,  86—4. 

Sec.  262.    Judgments,  how  to  be  pleaded.    C.  C.  P.,  s.  121, 

In  pleading  a  judgment  or  other  determination  of  a 
court  or  of  an  officer  of  special  jurisdiction,  it  shall  not 
be  necessary  to  state  the  facts  conferring  jurisdiction, 
but  such  judgment  or  determination  may  be  stated  to 
have  been  duly  given  or  made.  If  such  allegation  be 
controverted,  the  party  pleading  shall  be  bound  to  estab- 
bsh,  on  the  trial,  the  facts  conferring  jurisdiction. 

Sec.  263.    Conditions  precedent,  how  to  be  pleaded;  in- 
strument for  payment  of  money  only.      C.  C.  P.,  s.  122„ 

In  pleading  the  performance  of  conditions  precedent  in 
a  contract,  it  shall  not  be  necessary  to  state  the  facts 
showing  such  performance;  but  it  may  be  stated  generally 
that  the  party  duly  performed  all  the  conditions  on  his 
part;  and  if  such  allegation  be  controverted,  the  party 
pleading  shall  be  bound  to  establish,  on  the  trial,  the 
facts  showing  such  performance.  In  an  action  or  defence 
founded  upon  an  instrument  for  the  payment  of  money 
only,  it  shall  be  sufficient  for  the  party  to  give  a  copy  of 
the  instrument,  and  to  state  that  there  is  due  to  him 
thereon,  from  the  adverse  party,  a  specified  sum  which 
he  claims. 

Sec.  264.    Private  statutes,  how  pleaded.    C.  C.  P.,  s.  123. 

In  pleading  a  private  statute  or  right  derived  there- 
from, it  shall  be  suflficient  to  refer  to  such  statute  by  its 
title  and  the  day  of  its  ratification,  and  the  court  shall 
thereupon  take  judicial  notice  thereof. 

Trustees  v.  Satcliwell,  71—11. 

Sec.  265.    Libel  and  slander,  how  stated  in  complaint. 
C.  C.  P.,  s.  124. 

In  an  action  for  libel  or  slander,  it  shall  not  bo  necess- 
ary to  state  in  the  complaint  any  extrinsic  facts,  for  the 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDUEE.  101 

purpose  of  showing  the  apphcation  to  the  plaintiff  of  the 
defamatory  matter  out  of  which  the  cause  of  action 
arose;  but  it  shall  be  sufficient  to  state  generally  that  the 
same  was  published  or  spoken  concerning  the  plaintiff; 
and  if  such  allegation  be  controverted,  the  plaintiff  shall 
be  bound  to  establish,  on  trial,  that  it  was  so  pubhshed 
or  spoken . 

Carson  v.  Mills,  69—123. 

Sec.  266.  Answer  in  such  cases.    C.  C.  P.,  s.  125. 

In  the  actions  mentioned  in  the  preceding  section,  the 
defendant  may,  in  his  answer  allege  both  the  truth  of 
the  matter  charged  as  defamatory,  and  any  mitigating 
circumstances  to  reduce  the  amount  of  damages;  and 
whether  he  prove  the  justification  or  not,  he  may  give  in 
evidence  the  mitigating  circumstances. 

Moore  v.  EdmistOQ,  70 — 510. 
Sec.  267.  Wliat  causes  of  action  may  be  joined  in  the 
same  complaint.  C.  C.  P.,  s.  126. 
The  plaintiff  may  unite  in  the  same  complaint  several 
causes  of  action,  whether  they  be  such  as  have  been  here- 
tofore denominated  legal,  or  equitable,  or  both,  where 
they  all  arise  out  of: 

Lee  V.  Pearce,  68—76;  Land  Co.  v.  Bealty,  69-329;  Wooten  v. 
Maultsby,  69—463;  Edgerton  v.  Powell,  72-64;  Sutton  v.  McMillan,  72— 
103;  Burns  V.  Ashworth,  73—496;  Hamlin  v.  Tucker,  72—502;  Logan  v. 
Wallis,  76—416;  Doughty  v.  R.  R.  Co.,  78—32;  Street  v  Tuck,  84-605; 
Finch  V.  BaskerviUe,  85-205;  Syme  v.  Bunting,  86—175;  England  v.  Gar- 
ner, 86— 366 ;  Mebane  v.  Lay  ton,  86—571. 

(1)  The  same  transaction;  or  transaction  connected 
with  the  same  subject  of  action; 

Sumner  v.  Shipman,  65—623;  Land  Co.  v.  Beatty,  69— 329;  Wooten 
V.  Maultsby,  69—463;  Edgerton  v.  Powell,  73—64;  Burns  v.  Ashworth,  73 
—496;  Hamlin  v.  Tucker,  72—503;  Logan  v.  Wallis,  76—416;  Doughty  v. 
B.  R.  Co.,  78—23. 

(2)  Contract,  express  or  implied;  or, 
Sutton  V.  McMillan,  73—103;  Logan  v.  Walhs,  76—416. 

(3)  Injuries  with  or  without  force  to  person  and  prop- 
erty, or  to  either;  or, 

(4)  Injuries  to  character;  or,  ■  ,       . 

(5)  Claims  to  recover  real  property,  with  or  without 
damages  for  the  withholding  thereof;  and  the  rents  and 
profits  of  the  same;  or, 

(b)  Claims  to  recover  personal  property,  with  or  with-. 
out  damages  for  the  withholding  thereof;  or, 

Logan  V.  Wallis,  76—416;  Doughty  v.  R.  R.  Co.,.  78— 33;  Young  v.; 
Young,  81—91. 


102  CODE  OF  CIVIL  PROCEDUEE.     [Chap.  10. 

(7)  Claims  against  a  trustee,  by  virtue  of  a  contract,  or 
by  operation  of  law. 

But  the  causes  of  action  so  united  must  all  belong  to 
one  of  these  classes,  and  except  in  actions  for  the  fore- 
closure of  mortgages,  must  affect  all  the  parties  to  the 
action,  and  not  require  different  places  of  trial,  and  must 
be  separately  stated.  In  actions  to  foreclose  mortgages, 
the  court  shall  have  power  to  adjudge  and  direct  the  pay- 
ment by  the  mortgagor,  of  any  residue  of  the  mortgage 
debt  that  may  remain  unsatisfied  after  a  sale  of  the  mort- 
gaged premises,  in  cases  in  which  the  mortgagor  shall  be 
personally  hable  for  the  debt  secured  by  such  mortgage; 
and  if  the  mortgage  debt  be  secured  by  the  covenant  or 
obligation  of  any  person  other  than  the  mortgagor,  the 
plaintiff  may  make  such  person  a  party  to  the  action, 
and  the  court  may  adjudge  payment  of  the  residue  of 
such  debt  remaining  unsatisfied  after  a  sale  of  the  mort- 
gaged premises,  against  such  other  person,  and  may  en- 
force such  judgment  as  in  other  cases. 

Land  Co.  v.  Beatty,  69—329;  Sutton  v.  Millan,  72—102;  Logan  v  WalUs 
76—416. 

See.  268.  Allegation  not  denied,  when  to  be  deemed  true 
C.  C.  P.,  s.  137. 

Every  material  allegation  of  the  complaint  not  contro- 
verted by  the  answer,  and  every  material  allegation  of 
new  matter  in  the  answer,  constituting  a  counter-claim, 
not  controverted  by  the  reply,  shall  for  the  purposes  of 
action,  be  taken  as  true.  But  the  allegation  of  new  mat- 
ter in  the  answer,  not  relating  to  a  counter-claim,  or  of 
new  matter  in  reply,  is  to  be  deemed  controverted  by  the 
adverse  party  as  upon  a  direct  denial  or  avoidance,  as  the 
case  may  require. 

McKesson  V.  Mendenhall,  64— 386;  Erwin  v.  Lowry,  64— 321:  Jenkins 
V.  Ore  Dressing  Co.,  65—563;  Gates  v.  Gray,  66-442;  Moore  v.  Edmiston. 
70— 510;  Price  V.  Eccles,  73— 163;  Bank  V.  Charlotte,  75—45;  Skinner  v. 
Wood,  76—109;  Green  v.  B.  R,  Co.,  77—95;  Bonham  v.  Craig,  80—224. 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDURE. 


103 


CHAPTEE  SEVEN. 
MISTAKES  IN  PLEADINGS  AND  AMENDMENTS. 


of 


Section. 

275.  Wlien     plaintiff     ignorant 
name  of  defendant. 

276.  Errors  or  defects  not  substan 
tial,  to  be  disregarded. 

277.  Supplemental  pleadings. 


Section. 

269.  Material  variance. 

270.  Immaterial  variance. 

271.  A  failure  of  proof,  when. 

272.  Amendments    of    course  after 
allowance  of  demurrer. 

273.  Amendments  hj  order. 

274.  Relief  in  case  of  mistake,  sur- 
prise or  excusable  neglect. 

Sec.  269.  Material  variance.    C.  C.  P.,  s.  128. 

No  variance  between  the  allegation  in  a  pleading  and 
the  proof  shall  be  deemed  material,  unless  it  has  actually 
misled  the  adverse  party,  to  his  prejudice  in  maintaining 
his  action  upon  the  merits.  Whenever  it  shall  be  alleged 
that  a  party  has  been  so  misled,  that  fact  shall  be  proved 
to  the  satisfaction  of  the  court,  and  in  what  respect  he 
had  been  misled;  and  thereupon  the  judge  may  or-der  the 
pleading  to  be  amended  upon  such  terms  as  shall  be  ]ust. 

Garrett  v.  Trotter,  65-430;  Gibbs  v.  Fuller,  66-116:  Pegram  v.  Stoltz. 
67_144-  McKee  v.  Lineberger,  69-317;  Shelton  v,  Davis,  69—334;  Hor- 
ton  V  Newberry,  69-456;  Moore  v.  Edmiston,  70-510;  Wilsoo  v.  Moore, 
72-558-  Oom'rs  v.  Blair,  76-136;  Clawson  v.  Wolfe,  77-100;  Ten-Bvoeck 
V,  Orchard,  79-518;  Webb  v.  Taylor,  80-305;  Hoflman  v.  Moore,  82- 
313;  Brown  V.  Morris,  83—251;  Carpenter  v.  HufEsteller.  87—273. 

Sec.  270.  Immaterial  variance.    C.  C.  P.,  s.  129. 

Where  the  variance  is  not  material  as  provided  in  the 
preceding  section,  the  judge  may  direct  the  fact  to  be  found 
according  to  the  evidence,  or  may  order  an  immediate 
amendment  without  costs. 

Shelton  v.  Davis,  69—324  ;  Haughton  v.  Newberry,  69—456  ;  Wilson 
V.  Moore,  72-558;  Com'rs  v.  Blair,  76-136;  Webb  v.  Taylor,  80—305; 
Brown  v.  Morris,  83—251 ;  Carpenter  v.  Huffsteller,  87—273. 

Sec.  271.  A  failure  of  proof,  when.     C.  C.  P.,  s.  130. 

W^here,  however,  the  allegation  of  the  cause  of  action 
or  defence  to  which  the  proof  is  directed  is  unproved,  not 
in  some  particular  or  particulars  only,  but  in  its  entire 
scope  and  meaning,  it  shall  not  be  deemed  a  case  of  vari- 
ance within  the  preceding  section,  but  a  failure  of  proof. 

Shelton  v.  Davis,  69—324;  Carpenter  v.  Huffsteller,  87—273. 


104  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

Sec.  272.  Amendments  of  course  after  allowance  of  de- 
murrer.   C.  C.  P.,  s.  131.    1871-'2,  c.  173,  s.  1. 

Any  pleading  may  be  once  amended  of  course,  without 
costs,  and  without  prejudice  to  the  proceedings  already 
had,  at  any  time  before  the  period  for  answering  it  ex- 
pires: or  it  can  be  so  amended  at  any  time,  unless  it  be 
made  to  appear  to  the  court  that  it  was  done  for  the  pur- 
pose of  delay,  and  the  plaintiff  or  defendant  will  thereby 
lose  the  benefit  of  a  term  for  which  the  cause  is,  or  may 
be,  docketed  for  trial;  and  if  it  appear  to  the  court  or 
judge  that  such  amendment  was  made  for  such  purpose 
the  same  may  be  stricken  out,  and  such  terms  imposed 
as  to  the  court  or  judge  may  seem  just.  After  the  deci- 
sion of  a  demurrer,  the  judge  shall,  if  it  appear  that  the 
demurrer  was  mterposed  in  good  faith,  allow  the  party 
to  plead  over  upon  such  terms  as  may  be  just.  If  the 
demurrer  be  allowed  for  the  reason  that  several  causes  of 
action  have  been  improperly  united,  the  judge  shall,  upon 
such  terms  as  may  be  just,  order  the  action  to  be  divided 
into  as  many  actions  as  may  be  necessary  to  the  proper 
determination  of  the  causes  of  action  therein  mentioned. 

Ransom  V.  McClees,  64—17;  Love  v.  Com'rs.  64—706;  Merwin  v.  Bal- 
lard, 65—168;  Garrett  v.  Trotter,  65-430;  Brown  v.  Hawkins  65—645- 
Walsh  V.  Hall,  66-333  ;  Wilson  v.  Moore,  73-^58  ;  Dunn  v.  Barnes,' 
78—273;  Hinton  v.  Deans,  75—18;  Adams  v.  Reeves,  76—413;  Moore  v*. 
Hobbs,  77—65;  Cowan  v.  Baird,  77—201;  Doughty  v.  R.  R.  Co  78— 3a'- 
Pearcev.  Mason,  78—37;  Mabry  v.  Irwin.  78—45;  Netherton  v.  Candler' 
78—88;  Matthews  V.  Copeland,  80—80;  Street  v.  Tuck,  84—605;  Finch  v! 
Baskerville,  85— 205;  Bronson  v.  Insurance  Co.,  85—411 ;  England' v.  Garner 
86—366;  Reynolds  v.  Smathers,  87— 34;  Carpenter  v.  Huflfsteller,  87—373' 
Jones  V.  McKinnon,  87 — 294.  '  ' 

Sec.  273.  Amendments  by  order.    C.  C.  P.,  s.  132. 

The  judge  or  court  may,  before  and  after  judgment,  in 
furtherance  of  justice,  and  on  such  terms  as  may  be 
proper,  amend  any  pleading,  process  or  proceeding,  by 
adding  or  striking  out  the  name  of  any  party;  or  by  cor- 
recting a  mistake  in  the  name  of  a  party,  or  a  mistake  in 
any  other  respect;  or  by  inserting  other  allegations  ma- 
terial to  the  case;  or  when  the  amendment  does  not 
change  substantially  the  claim  or  defence,  by  conforming 
the  pleading  or  proceeding  to  the  fact  proved. 

Penny  v.  Smith,  Phil,,  35;  Thomas  v.  Womack,  64—657;  Garrett  v. 
Trotter,  65—480;  Bullard  v.  Johnson,  65—436;  Robinson  v.  Willoughby, 
67—84;  Oats  v.  Kendall,  67—241;  Deal  v.  Palmer,  68—215;  Bledsoe  v. 
Nixon,  69—81 ;  Shelton  v.  Davis,  69—834;  Haughton  v.  Newberry,  69—456; 
State  V.  Cauble,  70—63;  Williams  v.  Sharpe,  70—583;   Stafford  v.  Harris,' 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  105 

73-198-  Lippardv.  Roseman,  73-437;  Righton  v.  Pruden,  73-61;  Hinton 
V  Deans  75-18;  Heyer  v.  Beatly.  7C-28;  Com'rs  v.  Blair,  76—136; 
Adams  V '  Reeves,  76-412 ;  MurriU  v.  Humphrey,  76-414;  Lane  v.  Morton-, 
7^7-  Pearce  v.  Mason,  78-37;  Faison  v.  Johnson,  78-78;  Dob-on  v. 
Chambers  78-3a4;  Askew  v.  Capehart,  79-17;  March  v.  Verble,  79-19; 
Todd  V  Outlaw  79-235;  Johnson  v.  Rowland,  80-1;  Thomas  v.  Simpson, 
80-4-  Bank  v.  Creditors,  80-9;  Glenn  v.  Bank,  80-97;  Webb  v.  Taylor, 
80-305-  Wciller  v.  Lawrence,  81—65;  Henderson  v.  Gral.am,  84— 49o; 
Walton 'v.  Pearson.  85-34;  Martin  v.  Young,  85-156;  Gilchrist  v.  Kitchen, 
86— 2C;  Henry  v.  Cannon,  86—24;  Reynolds  v.  Smalhers,  87—24;  AViggms 
V.  McCoy,  87—499. 

Sec.  274.  Belief  in  case  of  mistake,  surprise  or  excusable 
neglect.  C.  C.  P.,  s.  133. 
The  iudge  may  likewise,  in  his  discretion,  and  upon 
such  terms  as  may  be  just,  allow  an  answer  or  reply  to 
be  made,  or  other  act  to  be  done,  after  the  time  limited, 
or  by  an  order  to  enlarge  such  time;  and  may  also  m  his 
discretion,  and  upon  su<-h  terms  as  may  be  just,  at  any 
time  within  one  year  after  notice  thereof,  reheve  a  party 
from  a  judgment,  order  or  other  proceeding  taken  against 
him  through  his  mistake,  inadvertence,  surprise  or  ex- 
cusable neglect,  and  may  supply  an  omission  m  any  pio- 
ceeding;  and  whenever  any  proceeding  taken  by  a  party 
fails  to  conform  in  any  respect  of  this  code,  the  ]udge 
may  in  like  manner  and  upon  like  terms,  permit  an 
amendment  of  such  proceeding,  so  as  to  make  it  con- 
formable thereto. 

Jacobs  V.  Burgwin,  63-196;  Jannan  v.  Saunders,  64-367;  Waddell  v. 
■V^ood  64-634;  Griel  v.  Vernon,  65—76;  Hudgins  v.  White,  65—393; 
Burke  V.  Stokely,  65-569;  Clcgg  v.  White  Soapstone  Co.,  66-391;  Kirk- 
man  v  Di^on,  66-406;  Powell  v.  Wehh,  66-423;  McDowell  v.  Asbury, 
66-444-  Watson  v.  Shields,  67-235;  Clegg  v.  White  Soapstone  Co.,  67- 
302-  Williams  v.  Green,  68-183;  Deal  v.  Palmer,  68-215;  McCullock  v. 
Doak  68—367;  Powell  v.  Weilh,  68—343;  Perry  v.  Pearce,  68—367;  JIc- 
R-ie  V  MeNair,  69—12;  Isler  y.  Brown,  69—125;  Cowles  v.  Hayes,  69— 
406-  Austin  V.  Clarke,  70-458;  Williams  v.  Sharpe,  70-582;  Williams  v. 
Wiiliams  70-665;  Howell  v.Harrell,  71-161;  White  v.  Snow,  71-233; 
Simonton  V.  Lanier,  71-198;  Long  v.  Cole,  73-30;  Harris  v.  Jenkins,  72- 
183-  Coffleld  V.  Warren,  72—223;  Johnson  v.  Duckworth,  72—244;  Daniel 
T  Owen,  72— 340;  Smith  v.  New  Berne,  73—303;  Wade  v.  New  Berne, 
73— SlS-Long  v.  Cole,  74—207;  Home  v.  Home,  75—101;  Skinner  v.  Brice, 
75-287';  Sludger  v.  Rollins,  76-271;  Quincy  v.  Perkins,  76-295;  McDaniel 

V  Watkins  76—399;  Bradford  v.  Coit,  77—72;  Bank  v.  Foot,  77—131; 
Simmons  V.  Dowd,  77-155;  Pearce  v.  Mason,  78-37;  Mabry  v.  Erwin, 
78-45-  Rollins  V.  Henry,  78-342;  Askew  v.  Capehart,  79-17;  Hanell  v. 
Peebles    79—36;  Blue  v.  Blue,  79—69;  Monroe  v.  Whit  ted,  79—508;  Jones 

V  Swepson,  79-510;  Hyman   v    Capehart,    79-511;   Com'rs  v.  McPher- 


106  CODE  OF  CIVIL  PEOCEDURE.     [Chap.  10. 

8on,  79—524;  Oldham  v.  Sneed,  80—15;  Kerchner  v.  Fairley,  80—24;  Me- 
bnno  V.  Mcbiine,  80—34;  Boyden  v.  Williams,  80—95;  Smith  v.  Hah'n,  80 
—240;  Paschall  v.  Bullock,  80—329;  Vick  v.  Pope,  81—22;  Hodgin  v. 
Matthews,  81—289;  Cobb  v.  O'Hagan,  81—293;  Kerchner  v.  Baker,  83-^ 
169;  Hiatt  v.  Waggoner,  82—173;  Clayton  v.  Johnston,  83—423;  Weaver 
V.  Jones,  83—440;  University  v.  Lassiter,  83—38;  Nicholson  v.  Cox.  83— 
48;  Mabry  v.  Henry.  83—298;  Walker  v.  Gurley,  83—429;  Hutchison  v. 
Rumfelt,  83—441;  Parker  v.  Railroad,  84—118;  McLean  v.  McLean,  84— 
366;  Stump  V.  Long,  84—616;  Walton  v.  Pearson,  85—34;  Bryant  v.  Fish- 
er, 85— 69;  Henry  v.  Clayton,  85—371;  DePriest  v.  Patterson,  85—376; 
Smith  V.  Reeves,  85—594;  Gilchrist  v.  Kitchen,  86—20;  Henry  v.  Cannon,' 
86—24;  Wynne  V.  Prairie,  86—73;  Franks  v.  Sutton,  86—78;  Norwood  v' 
King,  86—80;  Twitly  v.  Logan,  86—712;  Ellington  v.  Wicker,  87—14; 
Skinner  v.  Bland,  87—168;  Parker  v.  Bledsoe,  87— 221 ;  English  v  English' 
87-497. 

Sec.  275.    When  plaintiff  ignorant  ofname  of  defendant. 
C.  C.  P.,  s.  134, 

When  the  plaintiff  shall  be  ignorant  of  tho  name  of 
a  defendant,  such  defendant  may  be  designated  in  any- 
pleading  or  proceeding  by  any  name;  and  when  his  true 
name  shall  be  discovered,  the  pleading  or  proceeding  may 
be  amended  accordingly. 

Sec.  276.    Errors  or  defects  not  substantial  to  be  disre- 
garded.   B.  C,  c.  3,  ss.  5,  6.     C.  C.  P.,  s.  135. 

The  court  and  the  judge  thereof  shall,  in  every  stage 
of  the  action,  disregard  any  error  or  defect  in  the  plead- 
ings or  proceedings,  which  shall  not  affect  the  substantial 
rights  of  the  adverse  party;  and  no  judgment  shall  be 
reversed  or  affected,  by  reason  of  such  error  or  defect. 

Simpson  v.  Simpson,  64—427;  Gates  v.  Kendall,  67—241;  Moore  v.  Ed- 
miston,  70—510;  Com'rs  v.  Blair,  76—1.30;  Clawson  v.  Wolfe,  77—100; 
Jones  v.  Mial,  83—353;  Gorman  v.  Bellamy,  82—496. 

Sec.  277.  Suppplemental  pleadings.    C.  C.  P.,  s.  13C. 

The  plaintiff  and  defendant  respectively  may  be  al- 
lowed on  motion  to  make  a  supplemental  complaint, 
answer  or  reply,  alleging  facts  material  to  the  case  oc- 
curring after  the  former  complaint,  answer  or  reply,  cr 
of  which  the  party  was  ignorant  when  his  former  pleading 
was  made,  and  either  party  may  set  up  by  a  supplemental 
pleading,  the  judgment  or  decree  of  any  court  of  compe- 
tent jurisdiction,  rendered  since  the  commencement  of 
such  action,  determining  the  matter  in  controversy  in 
said  action,  or  any  part  thereof,  and  if  said  judgment 
be  set  up  by  the    plaintiff",  the  same  shall  be  without 


Chap.  10.]    CODE  OF  CIVIL  PROCEDUEE.  107 

prejudice  to  any   provisional   remedy  theretofore  issued 
or  other  proceedings  had,  in  said  action  on  his  behalt. 


Crump  V.  Mims,  64—767. 


TITLE    VIII. 
PROCEDURE  IN  SPECIAL  PROCEEDINGS. 


Section. 

278.  Provisions  of  code  applicable  to 
special  proceedings. 

379.  Summons  in  special  proceed- 
ings, -what  to  contain. 

280.  Return  of  summons. 

281.  Complaint  in  case    of    special 

proceedings;  when  filed. 
283.  Plaintiff  failing  to  file  complaint 
or  petition  within  the  time  for 
defendant's  appearance,   may 
be  non-suited 


Section. 

384.  When  all  parties  ask  same  re- 
lief. 

285.  In  what  cases  clerk  may  hear 

summarily. 

286.  If  any  of  the  petitioners  are  in- 

fants,  judge  must  review  or- 
der. 

287.  How  special  proceedings  to  be 

commenced. 

288.  Orders,    Ac,   to  be  signed  by 
judge. 


383    Time  of  filing  pleadings  may  be   289.  No  reports  set  aside  for  trivial 
enlarged.  I  defects. 

Sec.  378.    Provisious  of  code  applicable  to  special  pro- 
ceedings. .,  n  T 

The  provisions  of  the  code  of  civil  procedure  are  appli- 
cable to  special  proceedings,  except  as  otherwise  pro- 
vided. ,.  .    ^  ^    „ 

Sec.  279.  Summons  in  special  proceedings;  what  to  con 

The'^summons  in  special  proceedings  shall  command 
the  officer  to  summon  the  defendant  to  appear  at  the 
office  of  the  clerk  of  the  superior  court,  on  a  day  named 
in  the  summons,  to  answer  the  complaint  or  petition  o^ 
the  plaintiff.  The  number  of  days  withm  which  the 
defendant  is  summoned  to  appear  shall  in  no  case  be 
less  than  ten  exclusive  of  the  day  of  service. 

Guiou  V.  Melvin,  69—243  ;  Phillips  v.  Holland,  78—31. 

Sec.  280.   Return  of  summons.    C.  C.  P.,  s.  75. 

The  officer  to  whom  the  summons  is  addressed,  shall 
note  on  it  the  day  of  its  delivery  to  him;  if  required  by 


108  CODE  OF  CIVIL  PROCEDUEE.     [Chap.  10. 

the  plaintiff,  he  shall  execute  the  same  immediately. 
When  executed,  he  shall  immediately  return  the  sum- 
mons with  the  date  and  manner  of  its  execution,  by  mail 
or  otherwise,  to  the  clerk  of  the  court  issuing  it. 

Jones  V.  Gupton,  65 — 48;  Johcsou  v.   Ktuncdy,   70—435;    Wasson  v. 
Linster,  83—575. 


Sec.  281.  Complaint  in  case  of  special  proceciliug-.s  ;  when 
tiled.    C.  C.  P.,  s.  70.     lS7C-'7,  c.  241,  s.  4. 

It  shall  be  sufficient  for  the  plaintiff  to  file  his  com- 
plaint or  petition  with  the  clerk  of  the  court,  to  which 
the  summons  is  returnable,  at  the  time  of  issuing  the 
summons,  or  within  ten  days  thereafter. 

Sec.  282.  Plaintift'  failing  to  file  complaint  or  petition 
■within  the  time  for  defeurtant's  appearance,  may  be 
non-suited.    C.  C.  P.,  s.  78. 

If  the  plaintiff  shall  fail  to  file  his  complaint  or  peti- 
tion within  the  time  limited  by  the  summons  for  the  ap- 
pearance and  answer  of  the  defendant,  the  defendant 
shall  be  entitled  to  demand  judgment  of  non-suit  against 
the  plaintiff. 

McKesson  v.  Mendenhall,  64—502;  Andrews  v.  Piitchett,  66—887;  Pur- 
nell  V.  Vaughan,  80—46. 

Sec.  283.  Time  of  filing  pleadings  may  be  enlarged.  C.  C. 
P.,  s.  79. 

The  time  for  filing  the  complaint,  petition,  or  of  any 
pleading  whatever,  may  be  enlarged  by  the  court  for 
good  cause  shown  by  affidavit,  but  it  shall  not  be  en- 
larged by  more  than  ten  additional  days,  nor  more  than 
once,  unless  the  default  shall  have  been  occasioned  by  ac- 
cident over  which  the  party  applying  had  no  control,  or 
by  the  fraud  of  the  opposing  party. 

Best  V.  Clyde,  86—4. 

Sec.  284.  When  all  parties  ask  same  relief  C.  C.  P.,  s. 
418.    1868-'0,  c.  03,  s.  1. 

If  all  the  parties  in  interest  join  in  the  proceeding  and 
ask  the  same  relief,  the  commencement  of  the  proceed- 
ing shall  be  by  petition,  setting  forth  the  facts  entitling 
the  petitioners  to  rehef,  and  the  nature  of  the  relief  de- 
manded. 

FuUon  V.  Elliott.  66—195,  Ballard  v.  Kilpatrick,  71—281. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  109 

Sec.  285.  In  what  cases  clerk  may  hear  summarily.  C.  C. 
P.,  s.  419.     1868-'i),  c.  93.  s.  2. 

In  such  cases,  if  all  persons  to  be  affected  by  the  de- 
cree, or  their  attorney,  shall  have  signed  the  petition, 
and  they  be  of  full  age,  the  clerk  of  the  superior  court 
shall  have  power  to  hear  the  petition  summarily,  and  to 
decide  the  same,  if  either  or  any  of  the  petitioners  shall 
be  residing  out  of  the  state,  an  authority  from  him  or 
them,  to  the  attorney,  in  writing,  must  be  filed  with  the 
clerk,  before  he  shall  make  any  order  or  decree  to  preju- 
dice their  I'ights. 

Sec.  286.  If  any  of  the  petitioners  are  infants,  judge 
must  review  order.  C.  C.  P.,  s.  420.  1868-'9,  c.  93,  s. 
3. 

If  any  of  the  petitioners  be  an  infant,  or  the  guardian 
of  an  infant,  acting  for  him,  no  final  order  or  judgment 
of  the  clerk,  affecting  the  merits  of  the  case,  and  capa- 
ble of  being  prejudicial  to  the  infant,  shall  be  valid,  un- 
less submitted  to,  and  approved  by,  the  judge  of  the 
court  in  or  out  of  term. 

Stafford  v.  Harris,  73—198. 

Sec.  287.  How  special  proceedings  to  be  commenced.  C. 
C.  P.,s.  421.     1868-'9,  c.  93,  s.  4. 

When  special  proceedings  are  had  against  adverse 
parties,  they  shall  be  commenced  as  is  prescribed  for 
civil  actions. 

Sec.  288.  Orders,  &c.,to  he  signed  by  judge.  C.  C.  P.,  s. 
422.     1868-'9,c.  93,  s.  5.     1872-'3,  c.  lOO. 

Every  order  or  judgment  in  a  special  proceeding,  which 
is  required  to  be  made  by  a  judge  of  the  superior  court, 
either  in  or  out  of  term,  shall  be  authenticated  by  his 
signature. 

Thompson  v.  Berry,  64—81;  Foreman  v.  Bibb,  65—128;  McDowell  v. 
Ashbury,  66— 444;  Guion  v.  Melvin,  69—242;  Rollins  v.  Henry,  78— 342; 
Matthews  v.  Joyce,  85 — 258. 

Sec.  289.  No  report  set  aside  for  trivial  defects.  C.  C.  P., 
s.  424.    1868-'9,  c.  93,  s.  7. 

No  report  or  return  made  by  any  commissioners  shall 
be  set  aside  and  sent  back  to  them,  or  others  for  a  new 
report,  by  reason  of  anv  defect  or  omission  not  affecting 
the  substantial  rights  of  the  parties,  but  such  defect  or 
omission  may  be  amended  by  the  court,  or  by  the  com- 
missioners, by  permission  of  the  court. 

Tate  V.  Powe,  64r-644. 


110 


CODE  OF  CIVIL  PEOCEDUEE.     [Chap.  10. 


TITLE  IX. 

OF  THE  PKO VISIONAL  KEMEDIES  IN  CIVIL  ACTIONS. 

Chap.     I.  Arrest  and  Bail. 

II.  Claim  and  Deuvery  of  Personal  Property. 

III.  Injunction. 

IV.  Attachment. 

V.  Appointment  op  Eeceivers  and  other  Pro- 
visional Eemedies. 


CHAPTEE  ONE. 
AEEEST  AND  BAIL. 


Section. 

290.  No  person  to  be  arrested  except 

as  prescribed. 

291.  In  what  cases. 

293.  Order  of  arrest ;  from  whom  ob- 
tained. 

293.  Order  obtained  on  affida^^it,  and 

to  what  actions  applicable. 

294.  Uniortakiog  required  before  is. 

suing  order. 

295.  Time  when  order  may  issue,  its 

form;  time  to  answer  or  move 
to  vacate. 

296.  Sheriff  to  have  order  and  affida- 

vits, and  copies  to  be  delivered 
to  defendant  by  sheriff  on  his 
arrest. 
S97.  Order,  how  executed. 

298.  Defendant,  how  discharged. 

299.  Undertaking  of  defendant;  form 

of. 

300.  Surrender  of  defendant. 

301.  Bail  may  arrest  defendant. 

302.  Bail  to  be  proceeded  against  by 

action. 

303.  Bail,  liow  exoneiated. 


SECTIO^^. 

304.  Undertaking  of  bail  to  be  deliv. 

ered  to  clerk  and  notice  there, 
of  to  plaintiff,  and  its  accept, 
ance  or  rejection  by  him. 

305.  Notice    of   justilication  ;    new 

bail. 

306.  Qualifications  of  bail. 

307.  Justification  of  bail. 

308.  If   bail  adjudged  sufficient,  ex- 

amination to  be  certified,  and 
sheriff  exonerated. 
809.  Defendant    may   make  doposi^ 
iostead  of  bail  with  sheriff. 
Sheriff  within  four  days  to  pay 

deposit  into  court. 
BhU  substituted  for  deposit  and 
deposit  refun:kd, 

312.  Plaintiff    obtaining    judgment. 

deposit  applied  to  its  payment. 

313.  Sheriff  liable  as  bail,  when. 

314.  Judgment  against  sheriff;  ac  ion 

on  his  otl3ci.ll  bond. 

315.  Bail  liable  to  sheriff. 

310.  Defendant  before  judgment  may 
apply  on  motion  to  vacate. 


310. 


311. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  Ill 


Section. 

317.  Motion  to  vacate  made  on  afR. 

davit;  plaintiff  may  oppose  the 
same  by  affidavits  or  other 
proof. 

318.  Defendant  confined  for  want  of 


Section. 

bail,  may  give  bail,  and   bond 
returned  to  next  court. 

319.  B.iil  to  pay  costs  in  certain  cases. 

320.  Bail  not  discharged  by  amend- 

ment of  process. 


Sec.  290.    No  person  to  be  arrested  except  as  prescribed. 
C.  C.  P.,  s.  148. 

No  person  shall  be  arrested  in  a  civil  action,  except  as 
prescribed  by  this  chapter;  but  this  provision  shall  not 
apply  to  proceedings  for  contempt. 

Jarman  v.  Ward,  67—33 ;  Houston  v.  Walsh,  79—35. 

Sec.  291.    In  what  cases.    C.  C.  P.,  s.  149.     1869-'70,  c. 
79,  s.  1. 

The  defendant  may  be  arrested,  as  hereinafter  pre- 
scribed, in  the  following  cases: 

(1)  In  an  action  for  the  recovery  of  damages,  on  a  cause 
of  action  not  arising  out  of  contract,  where  the  defendant 
is  not  a  resident  of  the  state,  or  is  about  to  remove  there- 
from, or  where  the  action  is  for  an  injury  to  person  or 
character,  or  for  injuring,  or  for  wrongfully  taking,  de- 
taining or  converting  property; 

Hughes  V.  Person,  63— 54S;  "Wilson  v.  Barnhill,  64—121;  Wood  v.  Har- 
rell,  74—338;  Houston  v.  Walsh,  79—35;  Hoover  v.  Palmer,  80—313;  Pee- 
bles V.  Foote,  83—102. 

(2)  In  an  action  for  a  fine  or  penalty,  or  for  seduction, 
or  for  money  received,  or  for  property  embezzled  or  fraud- 
ulently misapplied  by  a  public  officer,  or  by  an  attorney, 
solicitor  or  counsellor,  or  by  an  officer  or  agent  of  a  cor- 
poration or  banking  association,  in  the  course  of  his  em- 
ployment as  such,  or  by  any  factor,  agent,  broker  or 
other  person  in  a  fiduciary  capacity,  or  for  any  miscon- 
duct or  neglect  in  office,  or  in  a  professional  employment; 

Melvin  v.  Melvin,  72 — 384;  McNeely  v.  Hnynes,  76 — 123;  Moore  v.  Mul- 
len, 77—327;  Peebles  v.  Foote,  83—302. 

(3)  In  an  action  to  recover  the  possession  of  personal 
property,  unjustly  detained,  where  the  property,  or  any 
part  thereof ,  has  been  concealed, removed  or  disposed  of,  so 
that  it  cannot  be  found  or  taken  by  the  sheriff,  and  with 
the  intent  that  it  should  not  be  so  found  or  taken,  or  with 
the  intent  to  deprive  the  plaintiff  of  the  benefit  therof ; 

(4)  When  the  defendant  has  been  guilty  of  a  fraud  in 
contracting  the  debt,  or  incurring  the  obligation  for  which 
the  action  is  brought,  or  in  conceahng  or  disposing  of  the 
property  for  the  taking,  detention  or  conversion  of  which, 


112  CODE  OF  CIVIL  PROCEDUEE.     [Chap.  10. 

the  action  is  brought,  or  when  the  action  is  brought  to 
recover  damages  for  fraud  or  deceit; 

Melvin  v.  Melvin,  72—884;  McNeely  v.  Haynes,  76—123;  Balinsen  v. 
Chesebro,  77—325. 

K.  C,  c.  31,  s.  54,  1777,  c.  118,  s.  6. 

(5)  When  the  defendant  has  removed,  or  disposed  of, 
his  property,  or  is  about  to  do  so,  witli  intent  to  defraud 
his  creditors; 

But  no  woman  shall  be  arrested  in  any  action,  except 
for  a  wilful  injury  to  person,  character  or  property;  and 
no  person  shall  be  arrested  on  Sunday. 

Smith  V.  Gibson,  74 — 684;  Paige  v.  Price,  78 — 10;  Hoover  v.  Palmer, 
80—313. 

Sec.  292.  Order  of  arrest;  from  whom  obtained.    C.  C.  P., 
s.  150. 

An  order  for  the  arrest  of  the  defendant  must  be  ob- 
tained from  the  court  in  which  the  action  is  biought,  or 
from  a  judge  thereof. 

"Woody  V.  Jordan,  69—189;  Tucker  v.  Davis,  77— 330;  Houston  v.  Walsh, 
79—35.  ^ 

Sec.  293.  Order  obtained  on  affidavit,  and  to  what  actions 
applicable.    C.  C.  P.,  s.  151,  18G9-'70,  c.  79,  s.  1. 

The  order  may  be  made  where  it  shall  appear  to  the 
court  or  judge  thereof,  by  the  affidavit  of  the  plaintiff,  or 
of  any  other  person,  that  a  sufficient  cause  of  action 
exists,  and  that  the  case  is  one  of  those  provided  for  in 
this  sub-chapter. 

Wilson  V.  Barnbill,  64—121;  Clark  v.  Clark,  64— 150;  Benedict  v.  Hall, 
76—113;  Balinsen  v.  Chesebro,  77—325;  Tucker  v.  Davis,  77—330;  Paige  v. 
Price,  78—10;  Peebles  v.  Foote,  83—102;  Johnston  v.  Pate,  83—110; 
Devries  v.  Summit.  86 — 126;  Roulhac  v.  Brown,  87 — 1. 

Sec.  294.  Undertakinf?  required  before  issuing  order.  C. 
C.  P.,  s.  152,  1808-'9,  c.  277,  s.  7. 
Before  making  the  order,  the  court  or  judge  shall 
require  a  written  undertaking  on  the  part  of  tiie  piaintitf, 
with  sufficient  surety  payable  to  the  defendant,  to  the 
effect  that  if  the  defendant  recover  judgment,  the  plain- 
tiff will  pay  all  damages  which  he  may  sustain  by  reason 
of  the  arrest,  not  exceeding  the  sum  specified  in  the 
undertaking,  which  shi^ll  be  at  least  one  hundred  dollars. 

Rowark  v.  Homesley,  68 — 91. 


Ohap.  10.]    CODE  OF  CIVIL  PROCEDURE.  113 

Sec.  295.  Time  when  order  may  issue,  its  form;  time  to 
answer  or  move  to  vacate.    C.  C,  P.,  s.  153. 

The  order  may  be  made  to  accompany  the  summons, 
or  to  issue  at  any  time  afterwards,  before  judgment.  It 
shall  require  the  sheriff  of  the  county  where  the  defend- 
ant may  be  found,  forthwith  to  arrest  him  and  hold  him 
to  bail  in  a  specified  sum,  and  to  return  the  order,  at  a 
place  and  time  therein  mentioned,  to  the  clerk  of  the 
court  in  which  the  action  is  brought,  and  notice  of  such 
return  shall  be  served  on  the  plaintiff  or  his  attorney  as 
prescribed  in  chapter  ten  for  the  service  of  other  notices. 

But  said  order  of  arrest  shall  be  of  no  avail,  and  shall 
be  vacated  or  set  aside  on  motion,  unless  the  same  is 
served  upon  the  defendant,  as  provided  by  law,  before 
the  docketing  of  any  judgment  in  the  action;  and  the 
defendant  shall  have  twenty  days  after  the  service  of  the 
order  of  arrest,  in  which  to  move  to  vacate  the  order  of 
arrest,  or  to  reduce  the  amount  of  bail. 

Houston  V.  Walsli,  79—35. 

Sec.  296.  Sheriff  to  have  order  and  aflldavits,  and  copies 
to  be  delivered  to  defendant  by  sheriff  on  his  arrest. 
C.  C.  P.,  s.  154. 

The  affidavit  and  order  of  arrest  shall  be  delivered  to 
the  sheriff,  who,  upon  arresting  the  defendant,  shall  de- 
liver him  a  copy  thereof. 

Sec.  297.  Order,  how  executed.    C.  C.  P.,  s.  155. 

The  sheriff  shall  execute  the  order  by  arresting  the  de- 
fendant and  keeping  him  in  custody  until  discharged  by 
law;  and  may  call  the  power  of  the  county  to  his  aid  in 
the  execution  of  the  arrest. 

Sec.  298.  Defendant,  how  discharged.    C.  C.  P.,  s.  156. 

The  defendant,  at  any  time  before  execution,  shall  be 
discharged  from  the  arrest,  either  upon  giving  bail  or 
upon  depositing  the  amount  mentioned  in  the  order  of 
arrest,  as  provided  in  this  chapter. 

Sec.  299.  Undertaking  of  defendant;  form  of.  C.  C.  P.,  s. 
157. 

The  defendant  may  give  bail  by  causing  a  written  un- 
dertaking, payable  to  the  plaintiff,  to  be  executed  by 
sufficient  surety  to  the  effect  that  the  defendant  shall  at 
all  times  render  himself  amenable  to  the  process  of  the 
court,  during  the  pendency  of  the  action,  and  to  such  as 
may  be  issued  to  enforce  the  judgment  thei'ein,  or  if  he 


114  CODE  OF  CIVIL  PEOCEDURE.     [Chap.  10. 

be  arrested  for  the  cause  mentioned  in  the  third  sub- 
division of  section  two  hundred  and  ninety- one,  an  un- 
dertaking to  the  same  effect  as  that  provided  by  section 
three  liundred  and  twenty-six. 
Scdbeny  v.  Carver,  77—319;  Miller  v.  Hahn,  84—226. 

Sec.  300.  Surrender  of  defendant.    C.  C.  P.,  s.  158. 

At  any  time  before  final  judgment  against  them,  the 
bail  may  surrender  the  defendant  in  their  exoneration, 
or  he  may  surrender  himself  to  the  sheriff  of  the  county 
where  he  was  arrested  in  the  following  manner: 

(1)  A  certified  copy  of  the  undertaking  of  the  bail  shall 
be  delivered  to  the  sheriff,  who  shall  detain  the  defend- 
ant in  his  custody  thereon,  as  upon  an  order  of  arrest, 
and  shall,  by  a  certificate  in  writing,  acknowledge  the 
surrender. 

(2)  Upon  the  production  of  a  copy  of  the  undertaking 
and  sheriff's  certificate,  the  court,  or  a  judge  thereof, 
may,  upon  a  notice  to  the  plaintiff  of  ten  days,  with  a 
copy  of  the  certificate,  order  that  the  bail  be  exonerated, 
and  on  filing  the  order  and  papei's  used  on  said  applica- 
tion, they  shall  be  exonerated  accordingly.  But  this 
section  shall  not  apply  to  an  arrest  for  cause  mentioned 
in  sub-division  three  of  section  two  hundred  and  ninety- 
one,  so  as  to  discharge  the  bail  from  an  undertaking 
given  to  the  effect  provided  by  section  three  hundred  and 
twenty-six. 

Sec.  301.  Bail  may  arrest  defendant.    C.  C.  P.,  s.  159. 

For  the  purpose  of  surrendering  the  defendant,  the 
bail,  at  any  time  or  place,  before  they  are  finally  chai'ged, 
may  themselves  arrest  him,  or  by  a  written  authority, 
indorsed  on  a  certified  copy  of  the  undertaking,  may  em- 
power any  person  over  twenty-one  years  of  age  to  do  so. 

Sedberry  v.  Carver,  77 — 319. 

Sec.  302.  Bail  to  l>e  proceeded  against  by  motion.    C.  C. 
P.,  s.  160. 

In  case  of  failure  to  comply  with  the  undertaking,  the 
bail  may  be  proceeded  against  by  motion  in  the  cause  on 
ten  days'  notice  to  such  bail. 

CharletOD  V.  Sloan,  64—703;  McDowell  v.  Ashbury,  66 — 444;  Insurance 
Co.  V.  Davis,  74—78. 

Sec.  303.  Bail,  how  exonerated.    C.  C.  P.,  s.  161. 

The  bail  may  be  exonerated,  either  by  the  death  of  the 
defendant,  or  his  imprisonment  in  a  state  prison,  or  by 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDUEE.  115 

his  legal  discharge  from  the  obligation  to  render  himself 
amenable  to  the  process,  or  by  his  surrender  to  the 
sheriff  of  the  county  where  he  was  arrested,  in  execution 
thereof,  at  any  time  before  final  judgment  against  the 
bail. 
Adrinn  v.  Scanlin,  77—317;  Sedberry  v.  Carvei-,  77—319. 

Sec.  304.  Undertaking  of  bail  to  be  delivered  to  clerk  and 
notice  thereof  to  plaintiff,  and  its  acceptance  or  rejec- 
tion by  him.    C.  C.  P.,  s.  163. 

Within  the  time  limited  for  that  purpose,  the  sheriff 
shall  deliver  the  order  of  arrest  to  the  clerk  of  the  court 
in  which  the  suit  is  brought,  with  his  return  indorsed, 
and  a  certified  copy  of  the  undertaking  of  the  bail,  and 
notify  the  plaintiff  or  his  attorney  thereof.  The  plaintiff, 
within  ten  days  thereafter,  may  serve  upon  the  sheriff  a 
notice  that  he  does  not  accept  the  bail,  or  he  shall  be 
deemed  to  have  accepted  it,  and  the  sheriff  shall  be  ex- 
onerated from  the  liability. 

Sec.  305.  Notice  of  justification;  new  bail.  C.  C.  P.,  s. 
163. 

On  the  receipt  of  such  notice,  the  sheriff  or  defendant 
may,  within  ten  days  thereafter,  give  to  the  plaintiff,  or 
his  attorney,  notice  of  the  justification  of  the  same  or 
other  bail  (specifying  the  places  of  residence  and  occu- 
pation of  the  latter)  before  the  court,  justice  of  the 
peace,  or  judge,  at  a  specified  time  and  place;  the  time 
to  be  not  less  than  five  nor  more  than  ten  days  thei-e- 
after.  In  case  other  bail  be  given,  there  shall  be  a  new 
undertaking,  in  the  form  prescribed  in  section  two  hun- 
dz'ed  and  ninety-nine. 

Sec.  306.    Qualifications  of  bail.    C.  C.  P.,  s.  164. 

The  quahfications  of  bail  must  be  as  follows: 

(1)  Each  of  them  must  be  a  resident  and  freeholder 
within  the  state; 

(2)  They  must  each  be  worth  the  amount  specified  in 
the  order  of  arrest,  exclusive  of  property  exempt  fi'om 
execution;  but  the  judge,  on  justification,  may  allow 
more  than  two  bail  to  justify  severally  in  amounts  less 
than  that  expressed  in  the  order,  if  the  whole  justifica- 
tion be  equivalent  to  that  of  two  sufficient  bail. 

Sec.  307.    Justification  of  ball.    C.  C.  P.,  s.  165. 

For  the  purpose  of  justification,  each  of  the  bail  shall 
attend   before   the   court   or  judge,  or   a  justice   of  the 


116  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

peace,  at  the  time  and  place  mentioned  in  the  notice,  and 
may  be  examined  on  oath,  on  the  part  of  the  plaintiff, 
touching  his  sufficiency,  in  such  a  manner  as  the  court, 
the  justice  of  the  peace,  or  the  judge,  in  his  discretion, 
may  think  proper.  The  examination  shall  be  reduced  to 
writing,  and  subscribed  by  the  bail,  if  required  by  the 
plaintiff. 

Sec.  308.      If  bail  adjudged  sufflcieut,  examination  to  be 
certifled,  and  sherift" exonerated.    C.  C.  P.,  s.  160. 

If  the  court,  justice  of  the  peace  or  judge  find  the  bail 
sufficient,  he  shall  annex  the  examination  to  the  under- 
taking, indorse  his  allowance  thereon,  and  cause  them 
to  be  filed  with  the  clerk;  and  the  sheriff  shall  there- 
upon be  exonerated  from  liability. 

Sec.  309.    Defendant  may  make  deposit  instead  of  bail 
with  sheriff.    C.  C.  P.,  s.  167. 

The  defendant  may,  at  the  time  of  his  arrest,  instead 
of  giving  bail,  deposit  with  the  sheriff  the  amount  men- 
tioned in  the  order.  The  sheriff  shall  thereupon  give  the 
defendant  a  certificate  of  the  deposit,  and  the  defendant 
shall  hd  discharged  from  custody. 

Sec.  310.    Sheriff  within  four  days  to  pay  deposit    into 
court.    C.  C.  P.,  s.  168. 

The  sheriff  shall,  within  four  days  after  the  deposit, 
pay  the  same  into  court,  and  shall  take  from  the  officer 
receiving  the  same  two  certificates  of  such  payment,  the 
one  of  which  he  shall  deliver  to  the  plaintiff,  and  the 
other  to  the  defendant.  For  any  default  in  making  such 
payment,  the  same  proceedings  may  be  had  on  the  official 
bond  of  the  sheriff,  to  collect  the  sum  deposited,  as  in 
other  cases  of  delinquencies. 

Sec.  311.    Bail  substituted  for  deposit  and  deposit   re- 
funded.   C.  C.  P.,  s.  169. 

If  money  be  deposited,  as  provided  in  the  two  preced- 
mg  sections,  bail  may  be  given  and  justified  upon  notice, 
as  prescribed  in  section  three  hundred  and  seven,  any 
time  before  judgment;  and  thereupon  the  judge,  court  or 
justice  of  the  peace  shall  direct,  in  the  order  of  allow- 
ance, that  the  money  deposited  be  refunded  by  the  sheriff 
or  other  officer  to  the  defendant,  and  it  shall  be  refunded 
accordingly. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDUEE.  117 

Sec.  312.  Plaintiff  obtaining  judgment,  deposit  applied  to 
its  payment.    C.  C.  P.,  s.  170. 

When  money  shall  have  been  so  deposited,  if  it  remain 
on  deposit  at  the  time  of  an  order  or  judgment  for  the 
payment  of  money  to  the  plaintiff,  the  clerk  or  other  of- 
ficer shall,  under  the  direction  of  the  court,  apply  the 
same  in  satisfaction  thereof,  and  after  satisfying  the 
judgment,  shall  refund  the  surplus,  if  any,  to  the  defend- 
ant. If  the  judgment  be  in  favor  of  the  defendant,  the 
clerk  or  other  officer  shall  refund  to  him  the  whole  sum 
deposited  and  remaining  unapplied. 

Sec.  313.  Sheriffllable  as  bail,  when.    C.  C.  P.,  s.  171. 

If,  after  being  arrested,  the  defendant  escape,  or  bs 
rescued,  or  bail  be  not  given  or  justified,  or  a  deposit  bs 
not  made  instead  thereof,  the  sheriff  shall  himself  be 
liable  as  bail.  But  he  may  discharge  himself  from  such 
liability,  by  the  giving  and  justification  of  bail  at  any 
time  before  process  against  the  person  of  the  defendant, 
to  enforce  an  order  or  judgment  in  the  action. 

Sec.  314.  Judgment  against  sheriff;  action  on  his  official 
bond.    C.  C.P.,  s.  172. 

If  a  judgment  be  recovered  against  the  sheriff,  upon 
his  liability  as  bail,  and  an  execution  thereon  be  returned 
unsatisfied,  in  whole  or  in  part,  the  same  proceedings 
may  be  had  on  the  official  bond  of  the  sheriff,  to  collect 
the  deficiency,  as  in  other  cases  of  delinquency. 

Sec.  315.  Bail  liable  to  Sheriff.    C.  C.  P.,  s.  173. 

The  bail  taken  upon  the  arrest  shall,  unless  they  justify, 
or  other  bail  be  given  or  justified,  be  liable  to  the  sheriff 
by  action,  for  damages  whicli  he  may  sustain  by  reason 
of  such  omission. 

Sec.  316.  Defendant  before  judgment  niayapply  on  mo- 
tion to  vacate.    C.  C  P.,  s.  174. 

A  defendant  arrested  may  at  any  time  before  judgment 
apply,  on  motion,  to  vacate  the  order  of  arrest,  or  to  re- 
duce the  amount  of  bail. 

Clark  V.  Clark,  64 — 150;  Bear  v.  Cohen,  65 — 511;  Rowark  v.  Homes- 
ley,  68—91;  Raulhac  v.  Brown,  87—1. 

Sec.  317.  Motion  to  vacate  made  on  affidavit;  plaintiff 
may  oppose  the  same  by  affidavits  or  other  proof.  C. 
C.  P.,  s.  175. 

If  the  motion  be  made  upon  affidavits  on  the  part  of 


118  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

the  defendant,  but  not  otherwise,  the  plaintiff  may  op- 
pose the  same  by  affidavits,  or  other  proof,  in  addition  to 
those  on  which  the  order  of  ai'rest  was  made. 

Wilson  V.  Bainhill,  64—121;  Clark  v.  Clark,  64^150;  Wciller  v.  Law- 
rence, 81 — 65;  Devries  V.  Summit,  86 — 126. 

Sec.  318.  Defendant  confined  for  want  of  bail,  may  give 
bail,  and  bond  returned  to  next  court.  R.  C,  c.  1 1 ,  s.  8. 
C.  C.  P.,  s.  175  (a). 

If  any  person  for  want  of  bail  shall  be  lawfully  com- 
mitted to  jail,  at  any  time  before  final  judgment,  the 
sheriff,  or  other  officer  having  him  in  custody,  may  take 
bail  and  discharge  him ;  and  tlie  bail-bond  shall  be  re- 
garded, in  every  respect,  as  other  bail-bonds,  and  shall  be 
returned  and  sued  on  in  like  manner;  and  the  officer 
taking  it  shall  make  special  return  thereof,  with  the  bond 
at  the  first  court  which  is  held  after  it  is  taken. 

Sec.  319.  Bail  to  pay  costs  in  certain  cases.  R.  C,  e.  11,  .s. 

lO.    C.  C.  p.,  s.  175  i«). 

Whenever  a  notice  shall  issue  against  any  person,  as 
the  bail  of  any  otlier  person,  and  .the  bail,  at  or  before 
the  term  of  the  court  at  which  such  bail  is  bound  to  ap- 
pear, or  ought  to  plead,  shall  not  be  discharged  from  his 
liability  as  bail  by  the  death  or  surrender  of  his  principal 
or  otherwise;  in"  that  case  the  bail  shall  be  liable  for  all 
costs  which  may  accrue  on  said  notice,  notwithstanding 
the  bail  may  be  afterwards  discharged,  by  the  death  or 
surrender  o'f  the  principal,  or  otherwise. 

Clark  V.  Latham,  8  Jou.,  1. 

Sec.  .320.  Bail  not  discharged  by  amendment  of  process. 
R.  €.,  c.  ll,s.  11.     C.  C.  P.,  s.  175  K). 

No  amendment  of  process  shall  discharge  tlie  bail  of 
the  party  arrested  thereon,  unless  tlie  amendment  be  to 
enlarge  the  sum  demanded  beyond  the  sum  expressed  in 
the  bail-bond. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDUEE. 


119 


CHAPTER  TWO. 


CLAIM  AND  DELIVEEY  OF  PEKSONAL  PEOPEETY. 


Section. 

321.  Delivery  to  be  claimed  at  the 
time  of  issuing  the  summons. 

323.  Affidavit  and  requisites. 

823.  Fiat  of  clerk  to  sheriff  to  deliver 
property. 

324.  Undertaking  of  plaintiff  for  de- 

livery of  property. 

325.  Exceptions  to  undertaking. 

326.  Undertaking  of  defendant  to  re- 

tain property. 
337.  Justification  of  defendant's  sure- 
ties. 
Patapsco  Co.  v.  Magee,  86—350. 


Section. 

328.  Qualification    and    justification 

of  defendant's  sureties,  how. 

329.  Property  concealed  in  buildings, 

how  taken. 
380.  Property  when  taken,  how  kept. 
331.  Property   taken,  claimed  by  a 

third  person. 
383.  Sheriff  not  bound  to  keep  the 

property,  but  may  deliver  to 

claimant. 
333.  Undertaking  and  affidavit,  when 

and  wl)ere  to  be  filed. 


Sec.  321.  Delivery  to  be  claimed  at  the  time  of  issuing- the 
sumnious.    C.  C.  P.,  s.  176. 

The  plaintiff,  in  an  action  to  recover  the  posses^sion  of 
personal  property,  may,  at  the  time  of  issuing  the  sum- 
mons, or  at  any  time  before  answer,  claim  the  immedi- 
ate delivery  of  such  property,  as  provided  in  this  sub- 
chapter. 

Hirsh  V.  Whitehead,  65—516;  Jarman  v.  Ward,  67—82;  Aslibrook  v. 
Shields,  67—333;  Woody  v.  .Jordan,  69— 189;  Haugliton  v.  Newberry,  69- 
456;  Holmes  v.  Godwin,  69 — 467;  Clemmons  v.  Hnmpton,  70 — 534;  Potter 
V.  Mardre,  74—36;  Hopper  v.  Miller,  76—402;  Ray  v.  Hortou,  77-334; 
Jones  V.  Ward,  77—337;  Churchill  v.  Lee,  77—341;  Mauny  v.  Ingram,  78— 
96;  Manix  v.  Howard,  79—553;  Webb  v.  Taylor,  80—305;  Williamson  v. 
Buck,  80—308;  McCraw  v.  Gilmer.  83—163;  Moore  v.  Woodward,  83— 
531;  Miller  v.  Hahu,  84^226;  Patapsco  v.  Magee,  8C— 350. 

Sec.  322,    Affidavit  aud  requisites.   C.  C.  P.,  s.  177.    1881, 
e.  134. 

Where  a  delivery  is  claimed,  an  affidavit  must  be 
made,  before  the  clerk  of  the  court  in  which  the  action 
is  required  to  be  tried,  or  before  some  person  competent 
to  administer  oaths,  by  the  plaintiff,  or  some  one  in  his 
behalf,  showing: 

Hirsh  V.  Whitehead,  65—516;  .Jarman  v.  Ward,  67—32;  Wehbv.  Taylor, 
80—305 ;  Manix  v.  Howard,  83—125 ;  Gotten  v.  Willoughby.  83—75 ;  Rhea 
V.  Deaver,  85—337. 


120  CODE  OF  CIVIL  PROCEDUEE.     [Chap.  10. 

(1)  That  the  plaintiff  is  the  owner  of  the  property 
claimed  (particularly  describing  it),  or  is  lawfully  entitled 
to  the  possession  thereof  by  virtue  of  a  special  property 
therein,  the  facts  in  respect  to  which  shall  be  set  forth; 

Blakely  v.  Patrick,  67—40;  Potter  v.  Maidre,  74—36;  Hopper  v.  Miller, 
76-402;  Cotton  v.  Willoughby,  83—75. 

(2)  That  the  property  is  wrongfully  detained  by  the  de- 
fendant; 

(3)  The  alleged  cause  of  the  detention  thereof,  accord- 
ing to  his  best  knowledge,  information  and  belief; 

(4)  That  the  same  has  not  been  taken  for  tax,  assess- 
ment, or  tine,  pursuant  to  a  statute;  or  seized  under  an 
execution  or  attachment  against  the  property  of  the 
plaintiff;  or,  if  so  seized,  that  it  is,  by  statute,  exempt 
from  such  seizure;  and, 

Hirsh  V.  Whitehead,  65—516;  Baxter  v.  Baxter,  77—118;  Jones  v.  Ward, 
77—337;  Churchill  v.  Lee,  77—341. 

(5)  The  actual  value  of  the  property. 
Hirsh  V.  Whitehead,  65—516;  Jaimauv.  Ward,  67—33. 

Sec.  323.    Fiat  of  clerk  to  sheriff,  to  deliver  property.  C. 
C.  P.,s.  178. 

The  clerk  of  the  court  shall,  thereupon,  by  an  indorse- 
ment in  writing  upon  the  affidavit,  require  the  sheriff  of 
the  county  where  the  property  claimed  may  be,  to  take 
the  same  from  the  defendant  and  deliver  it  to  the  plain- 
tiff: Provided,  the  plaintiff  shaU  give  the  undertaking 
prescribed  in  the  succeeding  section. 

Hirsh  V.  Whitehead,  65—516;  Jarman  v.  Ward,  67—32;  Ins.  Co.  v. 
Davis,  68—17;  Woody  v.  Jordan,  69—189;  Potter  v.  Mardre,  74—36 
Phillips  V.  Holland,  78—31. 

Sec.  324.    Undertakingr  of  plaintiff  for  delivery   of  prop- 
erty.   C.  C.  P.,  s.  17». 

Upon  the  receipt  of  the  order  from  the  clerk  with  a 
written  undertaking  payable  to  the  defendant  executed 
by  one  or  more  sufficient  sureties,  approved  by  the  sher- 
iff, to  the  eft^ect  that  they  are  bound  in  double  the  value 
of  the  property,  as  stated  in  the  affidavit  for  the  prose- 
cution of  the  action,  for  the  return  of  the  property  to  the 
defendant,  if  return  thereof  be  adjudged,  and  for  the 
payment  to  him  of  such  sum  as  may,  for  any  cause,  be 
recovered  against  the  plaintiff,  the  sheriff  shall  forthwith 
take  the  property  described  in  the  affidavit,  if  it  be  in  the 
possession  of  the  defendant  or  his  agent,  and  retain  it  in 
his  custody.  He  shall  also,  without  delay,  serve  on  the 
defendant  a  copy  of  the  affidavit,  notice,  and  undertak- 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDUEE.  121 

tag,  by  delivering  the  same  to  him  personally,  if  he  can 
be  found,  or  to  his  agent,  from  whose  possession  the 
property  is  taken;  or,  if  neither  can  be  found,  by  leaving 
them  at  the  usual  plai'C  of  abode  of  either,  with  some 
person  of  suitable  age  and  discretion. 

Hirsh  V.   Whitehead,   65— 51C;   Jiirmian  v.   Ward,   67—33;  Woody  v. 
Jordan,  69—189;  Hopper  v.  Miller,  76—403;  Mannix  v.  Howard,  83—135. 


Sec.  325.    Exceptions  to  undertaking-.    C.  C.  P.,  s.  180. 

The  defendant  may,  within  three  days  after  the  service 
of  a  copy  of  the  affidavit  and  undertaking,  give  notice  to 
the  sheriff  personally,  or  by  leaving  a  copy  at  his  office 
in  the  county  town  of  the  county,  or  if  he  have  no  such 
office,  at  the  office  of  the  clerk  of  the  court,  that  he  ex- 
cepts to  the  sufficiency  of  the  sureties.  If  he  fail  to  do 
so,  he  shall  be  deemed  to  have  waived  all  objection  to 
them.  When  the  defendant  excepts,  the  sureties  shall 
justify  on  notice,  in  like  mamier  as  upon  bail  on  arrest. 
And  the  sheriff  shall  be  responsible  for  the  sufficiency  of 
the  sureties,  until  the  objection  to  them  is  either  waived 
as  above  provided,  or  until  they  shall  justify,  or  until 
new  sureties  shall  be  substituted  and  justify.  If  the  de- 
fendant except  to  the  sureties,  he  cannot  reclaim  the 
property  as  provided  in  the  succeeding  section. 

Hirsh  V.  Whitehead,  65—516. 


Sec.  326.    Undertaking  of  defendant  to  retain  property. 
C.  C.  P.,  s.  181. 

At  any  time  before  the  delivery  of  the  property  to  the 
plaintiff,  the  defendant  may,  if  he  do  not  except  to  the 
sureties  of  the  plaintiff,  require  the  return  thereof,  upon 
giving  to  the  sheriff  a  written  undertaking,  payable  to 
the  plaintiff,  executed  by  one  or  more  sufficient  sureties, 
the  effect  that  they  are  bound  in  double  the  value  of  the 
property,  as  stated  in  the  affidavit  of  the  plaintiff,  for  the 
delivery  thereof  to  the  plaintiff,  if  such  delivery  be  ad- 
judged, and  for  the  payment  to  him  of  such  sum  as  may, 
for  any  cause,  be  recovered  against  the  defendant.  If  a 
return  of  the  property  be  not  so  required,  wnthin  three 
days  after  the  taking  and  service  of  notice  to  the  defend- 
ant, it  shall  be  delivered  to  the  plaintiff,  except  as  pro- 
vided in  section  three  hundred  and  thirty-one. 

Hirsh  V.  Whitehead,  65—516;  Ins.  Co.  v.  Davis,  74r— 78;  Miller  v.  Hahn, 
84—236;  Hughes  v.  Newsom,  86—124. 
6 


122  CODE  OF  CIVIL  PEOCEDURE.     [Chap.  10. 

Sec.  327.    Justification  of  defendant's  sureties.    C.  C.  P., 
s.  182. 

The  defendant's  sureties,  upon  a  notice  to  the  plaintiff 
of  not  less  than  two  or  more  than  six  days,  shall  justify 
before  the  court,  a  judge  or  justice  of  the  peace,  in  the 
same  manner  as  upon  bail  on  arrest;  upon  such  justifica 
tion,  the  sheriff  shall  deliver  the  property  to  the  defend- 
ant. The  sheriff  shall  be  responsible  for  the  defendant's 
sureties,  until  tliey  justify,  or  until  justification  is  com- 
pleted or  expressly  waived,  and  may  retain  the  property 
until  that  time;  but  if  they,  or  others  in  their  place,  fail 
to  justify  at  the  time  and  place  appointed,  he  shaU  de- 
liver the  property  to  the  plaintiff. 

Hirsh  V.  Whitehead,  65—516. 

Sec.  328.    Qualification  and  justification  of  defendant's 
sureties,  how.    C.  C.  P.,  s.  183. 

The  qualifications  of  sureties,  and  their  justification, 
shaU  be  as  prescribed,  in  respect  to  bail  upon  an  order  of 
arrest. 

Hirsh  V.  Whitehead,  65—516. 

Sec.  329.  Property  concealed   in  buildings,  how  taken. 
C.  C.  P.,  s.  184. 

If  the  property,  or  any  part  thereof,  be  concealed  in  a 
building  or  enclosure,  the  sheriff  shall  publicly  demand 
its  delivery.  If  it  be  not  delivered,  he  shall  cause  the 
building  or  enclosure  to  be  broken  open,  and  take  the 
property  into  his  possession;  and,  if  necessary,  he  may  call 
to  his  aid  the  power  of  his  county,  and  if  the  property  be 
upon  the  person  the  sheriff  or  other  officer  may  seize  the 
person,  and  search  for  and  take  the  same. 

Hirsh  V.  Whitehead,  65—516. 

Sec.  330.    Property  when  taken,  how  kept.    O.  C.  P.,  s. 
185. 

When  the  sheriff  shall  have  taken  property,  as  in  this 
chapter  provided,  he  shall  keep  it  in  a  secure  place,  and 
deliver  it  to  the  party  entitled  thereto,  upon  receiving  his 
lawful  fees  for  taking,  and  his  necessary  expenses  for 
keeping  the  same. 

Hirsh  V.  Whitehead,  65—516. 

Sec.  331.    Property  taken,  claimed  by  a  third  person.    K. 
C,  c.  7,  s.  10.     1810,  c.  583,  ss.  1,  2.    C.  C.  P.,  s.  ISO. 

When  the  property  taken  by  the  sheriff  shall  be  claimed 
by  any  person  other  than  the  plaintiff  or  the  defendant, 


Chap.  10.]     CODE  OF  CIVIL  PEOCEDUEE.  123 

the  claimant  may  interplead  upon  his  filing  an  affidavit 
of  his  title  and  right  to  the  possession  of  the  property, 
stating  the  grounds  of  such  right  and  title;  and  upon  his 
delivering  to  the  sheriff  an  undertaking  in  an  amount 
double  the  value  of  the  property  specified  in  plaintiff's 
complaint,  for  the  delivery  of  the  property  to  the  person 
entitled  to  the  same,  and  for  the  payment  of  all  such  costs 
and  damages  as  may  be  awarded  against  him;  this  under- 
taking to  be  executed  by  one  or  more  sufficient  sureties, 
accompanied  by  their  affidavits  that  they  are  each  worth 
double  the  value  of  property.  A  copy  of  this  undertak- 
ing and  accompanying  affidavits  to  be  served  by  the  sheriff 
on  the  plaintiff  and  defendant  at  least  ten  days  before  the 
return  day  of  the  summons  in  said  action,  when  the  coui-t 
trying  the  same  shall  order  a  jury  to  be  impaneled  to 
inquire  in  whom  is  the  right  to  the  property  specified  in 
plaintiff's  complaint;  and  the  finding  of  the  jury  shall  be 
conclusive  as  to  the  parties  then  in  court,  and  the  court 
shall  adjudge  accordingly,  unless  it  is  reversed  upon 
appeal.  Provided,  that  in  a  court  of  a  justice  of  the 
peace,  he  may  try  such  issue  unless  a  jury  be  demanded, 
and  then  proceedings  are  to  be  conducted  in  all  respects  as 
in  ju]-y  trials  before  courts  of  justices  of  the  peace. 

Simpson  v.  Harry.  1  D.  &  B.,  202;  McLean  v.  Douglass,  6  Ired.,  233; 
Evans  v.  Transportation  Co.,  5  Jon.,  331;  Cberry  v.  Nelson.  7  .Ion..  141; 
Banli  V.  Spurling,  7  Jon.,  398;  Bear  v.  Cohen.  65—511;  Hirsh  v.  Whitehead. 
65—516;  Cleinmons  v.  Hampton,  70—534;  Sims  v.  Goettle,  83—268;  Sims 
V.  Goettle,  82—271. 


Sec.  332.  Sheriff  not  bound  to  keep  the  property,  but 
may  deliver  to  claimant.  R.  C,  c.  7,  s.  10.  1810,  c. 
583,  ss.  1,2.    C.  C.  P.,  s.  186.    {a.) 

Upon  the  filing  by  the  claimant  of  the  undertaking  set 
forth  in  the  preceding  section,  the  sheriff  shall  not  be 
bound  to  keep  the  property,  or  to  deliver  it  to  the  plaintiff; 
but  may  deliver  it  to  the  claimant,  unless  the  plaintiff 
shall  execute  and  deliver  to  him  a  similar  undertaking  to 
that  required  of  claimant;  and  notwithstanding  such 
claim,  when  so  made,  the  sheriff  may  retain  the  property 
a  reasonable  time  to  demand  such  indemnity. 


Sec.  333.    Undertaking  and  affidavit,  when  and  where  to 
be  filed.    C.  C.  P.,  s.  187. 

The  sheriff  shall  return  the  undertaking,  notice  and 
affidavit  with  his  proceedings  thereon  to  the  court  in 


124 


CODE  OP  CIVIL  PROCEDURE.     [Chap.  10. 


which  the  action  is  pending  within  ten  days  after  taking 
the  property  mentioned  therein. 

Hirsh  V.  Wiiitehead,  65 — 516;  Insurance  Co.  v.  Davis,  74 — T8:  Harker  v. 
Arendell,  74r-85. 


CHAPTER  THREE. 
INJUNCTION. 


Section. 

334.  Injunction  as  a  provisional  rem- 

edy abolislicd,  and  injunction 
by  order  siibslilutcd. 

335.  What  judge   to   grant  injunc- 

tions and  restraining  orders. 

336.  Before  what  judge  returnable. 

337.  Parties  to  application  for  in- 

junction may  by  written  stip- 
ulation designate  a  judge  to 
hear  the  same:  Proviso. 

338.  Injimction,  in   what  cases  al- 

lowed. 

339.  At  what  time  granted;  copy  of 

affidavit  to  be  served. 
840.  Injunction    after    answer,    al- 
lowed upon  notice. 


Section. 

341.  Undertaking  upon  injunction; 

damages,  how  ascertained. 

342.  Order  to  show  cause;  restraint 

in  the  meantime. 

343.  Injunction  to  suspend  business 

of  corporation  not  gi'anted, 
uuless  vmdeitaking  is  given. 

344.  Injunction  without   notice,  va- 

cated or  ntodificd  upon  notice. 

345.  Application  to  modify  or  vacate 

upon  affidavit,  may  be  op- 
po.=ed  by  affidavit. 

346.  Restraining  order  shall  not  be 

granted  for  more  than  twenty 
days  without  notice;  but  con- 
tinue uutU  dissolved  on  notice. 


I 


Sec.  334.    Injunction  a.s  a  provisional  rcniedj'  abolished, 
and  injunction  by  order  substituted.    C.  C.  P.,  s.  188. 

The  writ  of  injunction  as  a  provisional  remedy  is  abol- 
ished, and  a  temporary  injunction  by  order  is  substituted 
therefor.  The  order  may  be  made  by  any  judge  of  a  su- 
perior court,  in  the  cases  provided  in  section  three  hun- 
dred and  thirty  -eight,  and  may  be  enforced  as  tlie  order 
of  the  court.  Upon  such  order,  it  shall  be  issued  by  the 
clerk  of  the  court  in  which  the  action  is  required  to  be 
tried. 

Foard  v.  Alc^cander,  04 — 69;  Chambers  v.  Penland,  78 — 53;  Jones  v. 
Cameron,  81 — 154. 

Sec.  3.35.    "What  judge  to  grant  in,junctions  and  restrain- 
ing orders.     1870-'7,  c.  232,  s.  1.     187J),  c.  63,  s.s.  1,  3. 
The  judges  of  the  superior  court  of  this  state  shall  have 
jurisdiction  to  grant  injunctions  and  issue  restraining  or- 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  125 

ders  in  all  civil  actions  and  proceedings,  which  are  author- 
ized by  law:  Provided,  that  a  judge  holding  a  special 
term  in  any  county  may  grant  an  injunction,  or  issue  a 
restraining  order,  returnable  before  himself,  in  any  case 
which  he  may  have  jurisdiction  to  hear,  and  determine 
under  the  commission  issued  to  him,  and  the  same  shall 
be  returnable  as  directed  by  the  judge  in  the  order. 
Brown  v.  R.  K.  Co.,  83—138;  Gal  breath  v.  Everett,  84—546. 

Sec.  336.     Before  what  judge  returnable.     1876-'7,  c. 
232,  s.  2.     1879.  c.  635,  ss.  2,  3.     1881,  c.  51,  s.  1. 

All  restraining  orders  and  injunctions  granted  by  any 
of  the  judges  of  the  superior  court,  except  a  judge  hold- 
ing a  special  term  in  any  county,  shall  be  made  returna- 
able  before  the  resident  judge  of  the  district,  or  the  judge 
assigned  to  the  district,  or  holding  by  exchange  the 
courts  of  the  district  whei-e  the  civil  action  or  special 
proceeding  is  depending,  within  twenty  days  from  date 
of  order.  And  if  the  judge  before  whom  the  same  is  re- 
turned shall,  from  sickness,  inability,  or  from  any  cause, 
fail  to  hear  said  motion  and  application,  or  to  continue 
the  same  to  some  other  time  and  place,  then  it  shall  be 
competent  for  any  judge  resident  in  some  adjoining  dis- 
trict, or  a  judge  assigned  to  hold  the  court  of  some  ad- 
joining district,  or  the  judge  holding  by  exchange  the 
court  of  some  adjoining  district,  to  hear  and  determine 
the  said  motion  and  application,  after  giving  ten  days' 
notice  to  the  parties  interested  in  the  application  or  mo- 
tion, upon  its  being  satisfactorily  shown  to  him  by  affi- 
davit or  otherwise,  that  the  judge  before  whom  the  same 
was  returnable  failed  to  act  upon  the  same,  or  to  con- 
tinue the  same  to  some  other  time  and  place.  The  effect 
of  such  i-emoval  shall  be  to  continue  in  force  the  motion 
and  application  theretofore  granted,  till  the  same  can  be 
heard  and  determined  by  the  judge  having  jurisdiction  of 
the  same. 

Corbin  V.  Berry,  83-37;  Galbreath  v.  Everett,  84r— 546. 

Sec.  337.  Parties  to  application  for  injunction  may  by 
written  stipulation  designate  a  judge  to  bear  the  same. 
1883,  c.  33. 

By  a  stipulation  in  writing,  signed  by  all  the  parties  to 
an  application  for  an  injunction  order,  or  their  attorney, 
to  the  effect  that  the  matter  may  be  heard  before  any 
judge,  to  be  designated  in  such  stipulation,  the  judge 
before  whom  the  restraining  order  is  returnable  by  law, 
or  who  is  by  law  the  judge  to  hear  the  motion  for  an  in- 


126  CODE  OF  CIVIL  PROCEDUEE.     [Chap.  10. 

junction  order,  shall,  upon  receipt  of  such  stipulations, 
forward  the  same  and  all  the  papers  to  the  judge  desig- 
nated in  the  stipulation,  whose  duty  it  shall  thereupon 
be  to  hear  and  decide  the  matter,  and  return  all  the 
papers  to  the  court  out  of  which  they  issued:  Provided, 
that  the  necessary  postage  or  expressage  money  be  fur- 
nished to  said  judge. 

Sec.  338.    Injunction,  in  what  cases  allowed.    C.  C.  P., 
6.  189. 

(1)  DEPENDS  UPON  NATURE  OF  THE  ACTION. 

(1)  When  it  shall  appear  by  the  complaint  that  the 
plaintiff  is  entitled  to  the  relief  demanded,  and  such  re- 
lief or  any  part  thereof,  consists  in  restraining  the  com- 
mission, or  continuance  of  some  act,  the  commission  or 
continuance  of  which,  during  the  litigation,  would  pro- 
duce injury  to  the  plaintiff  ;  or 

Fox  V.  Cline,  85—173. 

(2)  AND   (3)   DEPEND  UPON  EXTRINSIC   FACTS. 

(2)  When,  during  the  litigation,  it  shall  appear  by  af- 
fidavit of  plaintiff  or  any  other  person,  that  the  defend- 
ant is  doing,  or  threatens,  or  is  about  to  do,  or  procuring 
or  suffering  some  act  to  be  done  in  violation  of  the  plain- 
tiff's rights  respecting  the  subject  of  the  action,  and 
tending  to  I'ender  the  judgment  ineffectual,  a  temporary 
injunction  may  be  granted  to  restrain  him  therefrom; 

Heiligv.  Stokes,  63—612;  Wilder  v.  Lee,  64—50;  Foard  v.  Alexander. 
64—69;  Jones  v.  Hill,  64—198;  Smith  v.  Dewey,  64—463;  Patterson  v. 
Hubbs,  65—119;  Howes  v.  Mauney,  66—218;  Sprinkle  v.  Hutcbinson,  66— 
450;  R.  R.  Co.  v.  Battle,  66—540;  Dockery  v.  French,  69—308;  liryan  v. 
Hubbs,  69—423;  Johnston  v.  Rankin,  70— 550;  Faison  v.  Mcllwaine,  72— 
312;  Chambers  V.  Penland,  78— 53;  Dobson  v.  Simonton,  78—63;  .Jones  v. 
Thorne,  80—72;  Banks  v.  Parker,  80—157;  Tillery  v.  Wren,  86—217; 
Walton  V.  Mills,  86—280. 

(3)  And  where,  during  the  pendency  of  an  action,  it 
shall  appear  by  affidavit  of  plaintiff  or  any  other  person, 
that  the  defendant  threatens,  or  is  about  to  remove  or 
dispose  of  his  property,  with  intent  to  defraud  the  plain- 
tiff, a  temporory  injunction  may  be  granted  to  restrain 
such  removal  or  disposition. 

Bell  V.  Chadwick,  71—329;  German  v.  Clarke,  71—417;  Baldwin  v. 
York,  71—463;  Amalgamating  Co.  v.  Dressing  Co.,  73 — 468;  Campbell  v. 
Wolfenden,  74 — 103;  Jolinson  v.  Jones,  75 — 200;  McCorkle  v.  Brem,  76 — 
407;  Cohen  v.  Com'rs,  77—2;  Baxter  v.  Baxter,  77—118;  Moore  v.  Valentine, 
77—188;  Capchart  v.  Biggs,  77—261;  Purnel!  v.  Vaughan,  77— 208. 


Chap.  10.]    CODE  OF  CIVIL  PKOCEDURE.  1-2Y 

Sec.  339.    At  what  time  granted;  copy  of  affidavit  to  be 
served.    C.  C.  P.,  s.  190. 

The  injunction  may  be  granted  at  the  time  of  com- 
mencing the  action,  or  at  any  time  afterwards,  before 
iudgment;  upon  its  appearing  satisfactorily  to  the  judge, 
by  the  affidavit  of  the  plaintiff,  or  of  any  other  person, 
that  sufficient  grounds  exist  therefor.  A  copy  of  the 
affidavit  must  be  served  with  the  injunction. 

Patrick  V.  Joyner,  63—573;  Heilig  v.  Stokes,  63—612;  Foard  v.  Alexan- 
der, 64^69;  McArthur  v.  McEachin,  64^72;  Backalan  v.  Littlefield,  64r- 
233;   Hivsh  v.  "Whitehead,  65—516;  Martin  v.Sloane,  69—128. 

Sec.  340.    Injunction  after  answer,  allowed  upon  notice. 
C.  C.  P.,s.  191. 

An  injunction  shall  not  be  allowed  after  the  defendant 
shall  have  answered,  unless  upon  notice,  or  upon  an  or- 
der to  show  cause;  but  in  such  case  the  defendant  may 
be  restrained  until  the  decision  of  the  judge  granting  or 
refusing  the  injunction. 

Heilig  V.  Stokes,  63—612;  Foard  v.  Alexander,  64—69;  Jarman  v.  Saun- 
ders, 64—367;  Faison  v.  Mcllwaine,  72—312. 

Sec.   341.    Undertaking  upon  injxinction;  damages,  how 
ascertained.    C.  C.  P.,  s.  193. 

Upon  granting  a  restraining  order  or  an  order  for  an 
injunction,  the  judge  shall  require  as  a  condition  prece- 
dent to  the  issuing  thereof,  that  the  clerk  shall  take  from 
the  plaintiff  a  written  undertaking,  with  sufficient  sure- 
ties to  be  justified  before,  and  approved  by,  the  said  clerk, 
or  by  the  judge,  in  an  amount  to  be  fixed  by  the  judge, 
to  the  effect  that  the  plaintiff  will  pay  to  the  party  en- 
joined such  damages,  not  exceeding  an  amount  to  be 
specified,  as  he  may  sustain  by  reason  of  the  injunction, 
if  the  court  shall  finally  decide  that  the  plaintiff  was  not 
entitled  thereto.  The  damages  may  be  ascertained  by  a 
reference  or  otherwise,  as  the  judge  shall  direct,  and  the 
decision  of  the  court  thereupon  shall  be  conclusive  as  to 
the  amount  of  damages  upon  all  the  persons  who  have  an 
interest  in  the  undertaking. 

Sledge  V.  Blum,  63—374;  McArthur  v.  McEaehiu,  64—72;  Richards  v. 
Baurraan,  65—162;  Hirsh  v.  Whitehead,  65—516;  Burke  v.  Stokcly,  65  — 
569;  Hyiiian  v.  Devcreux,  65—588;  McKesson  v.  Heiiuessce,  66—473;  Jlillei 
V.  Parker,  73—58;  Amalgnmating  Co.  v.  Ore  Dressing  Co.,  79—48;  Burnett 
V.  Nicholson,  79—548;  Sternberger  v.  Hawley,  85—141. 


128  CODE  OF  CIVIL  PROCEDUEE.     [Chap.  10. 

Sec.  342.  Order  to  show  cause;  restraint  in  the  mean- 
time.   C.  C.  P.,  s.  193. 

If  the  judge  deem  it  proper  that  the  defendant,  or  any 
of  several  defendants,  should  he  heard  before  granting 
the  injunction,  an  order  may  be  made  requiring  cause  to 
be  shown,  at  a  specified  time  and  place,  whv  the  injunc- 
tion should  not  be  granted;  and  the  defendant  may,  in 
the  meantime,  be  restrained. 

Faison  v.  Mcllwaiae,  73—313;  Sternberger  v.  Hawley,  83—141. 

Sec.  343.  Injunction  to  suspend  business  of  corporation 
not  granted,  unless  undertaking  is  given.  C.  C.  P  s 
194. 

An  injunction  to  suspend  the  general  and  ordinary 
business  of  a  corporation  shaU  not  be  granted  without 
due  notice  of  the  application  therefor,  to  the  proper  offi- 
cers of  the  corporation,  except  where  the  state  is  a  party 
to  the  proceeding,  unless  the  plaintiff  shall  give  a  written 
undertaking,  executed  by  two  sufficient  sureties,  to  be 
approved  by  the  judge,  to  the  effect  that  the  plaintiff  will 
pay  all  damages,  not  exceeding  the  sum  to  be  mentioned 
in  the  undertaking,  which  such  corporation  may  sustain 
by  reason  of  the  injunction,  if  the  court  shall  finally  de- 
cide that  the  plaintiff  was  not  entitled  thereto.  The 
damages  may  be  ascertained  by  a  reference,  or  otherwise, 
as  the  court  shall  direct. 

Sec.  344.  Injunction  without  notice,  vacated  or  modi- 
fied upon  notice.    C.  C.  P.,  s.  195. 

If  the  injunction  be  granted  without  notice,  the  defen- 
dant, at  any  time  before  the  trial,  may  apply,  upon  ten 
days'  notice  to  the  judge  having  jurisdiction  thereof,  to 
vacate  or  modify  the  same.  The  application  may  be 
made  upon  the  complaint  and  the  affidavits  on  which 
the  injunction  was  granted,  or  upon  the  affidavits  on  the 
part  of  the  defendant,  with  or  without  answer;  but  if  no 
such  application  be  made,  the  injunction  shall  contiiuie, 
and  be  in  force  until  such  application  shall  be  made  and 
determined  by  the  judge,  and  a  verified  answer  has  the 
effect  only  of  an  affidavit. 

Sharpe  v.  King,  3  Ired.  Eq..  402;  Perkins  v.  Hollowell,  5  Ired.  Eq.,  34.; 
Sledge  V.  Blum,  63-374;  Bear  v.  Cohen,  G5— 511.;  Perry  v.  Micliaux' 
79—94. 

Sec.  345.  Application  to  modify  or  vacate  upon  affida- 
vit, may  be  opposed  by  affidavit.    C.  C.  P.,  s.  1 90. 

If  the  application  be  made  upon  affidavits  on  the  part 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  129 

of  the  defendant,  but  not  otherwise,  the  plaintiff  may 
oppose  the  same  by  affidavits  or  other  proof  in  addition 
to  those  on  which  the  injunction  was  granted. 

Clark  V  Clark,  64-150;  Howerton  v.  Sprague,  64-451:  Craycroll  v. 
Morebead,  67-422;  Woodfin  v.  Beach,  70-455;  Lowe  v.  Com'.s.  70-533; 
Pouton  V.  McAdoo,  71-101 ;  Mitchell  v.  Com'rs,  74-487;  Chambers  v  Pen- 
land,  78-53;  Jones  v.  Boyd,  80-258;  Welller  v.  Lawrence,  81-G5;  Young 
V.  Rollins,  85 — 485. 

Sec  346.  Kestraining  order  shall  not  he  granted  for  more 
than  twenty  days  without  notice;  but  continue  until 
dissolved  on  notice.    C.  C.  P.,  s.  345. 

No  restraining  order,  or  order  to  stay  proceedings  tor 
a  longer  time  than  20  days,  shall  be  granted  by  a  ]udge 
out  of  court,  except  upon  due  notice  to  the  adverse 
party;  but  the  said  order  shaU  continue  and  remain  in 
force  until  vacated  upon  notice. 


CHAPTER  FOUR. 
ATTACHMENT. 


Section. 

847.  In  what  actions  attachment  may 
be  issued. 

348.  Warrant    to    accompany  sum- 

mons, or  to  be    issued  after- 
wards. 

349.  What  must  be  shown  to  pro- 

cure warrant. 

850.  Warrant    issued  by  justice  of 

the  peace;  publication   to  be 
made. 

851.  Warrant,  by  whom  granted. 
353.  Warrant,  bow  served. 

353.  When  warrant    granted    by  a 

justice  of  the  peace. 

354.  Justice's  attaclmients  levied  on 

land,  what  to  be  done. 

355.  Warrant    procured;    affidavits 

to  be  filed. 

356.  Undertaking  before  issuing  war- 

rant. 


Section. 

357.  Warrant,  to  whom  directed  and 

what  to  require. 

358.  Validity  of  undertaking. 

359.  Warrant,  bow  executed. 

360.  Proceedings  when  property  at- 
tached is  perishable,  or  a  ves- 
sel. 

361.  Defendant  may  replevy  before 
sale. 

363.  Interest  in  corporations  or  as- 
sociations liable  to  attach- 
ments. 

Attachment,  how  executed  on 
property  incapable  of  manual 
delivery. 

A     garnishee     summoned     to 
answer    on    oath;    jiidgmeut 
against  garnishee. 
365.  Proceeilings  against  garnishee 
failing  to  appear. 


363. 


364. 


130 


CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 


Section. 

366.  Garnishee  denying  he  has  any 

property;  issue  to  he  made  up. 

367.  Articles  confessed  hy  garnishee, 

to  be  vulued  by  jury  and  judg- 
ment for  Iheir  value;  in  what 
cases  garnishee  e.xcused. 

368.  Judgment  couditional    against 

garnishee,  when. 

369.  Certificate  of  defendant's  inter- 

est to  be  furnished. 

370.  Judgment,  how  satisfied. 

371.  When  action  to  recover  notes, 

&c.,  of  defendant  may  be 
prosecuted  by  plaintill  in  the 
action  in  which  the  attach- 
ment issued. 

372.  Bond  of  plaintiff,  how  disposed 

of,  or  judgment  for  defendant. 


Section. 

;173.  Attachment  discharged,  and 
property  or  its  proceeds  re- 
turned to  defendant  on  his 
appearance  in  action. 

374.  Undeiialdng  of  defendant  on 

appearance  to  discharge   the 
property. 

375.  Property  claimed  by  third  party, 

may  interplead. 

376.  Wlieu  the  sheriff  to  return  war- 

rant,   with     his    proceedings 
thereou. 

377.  Motion   to  vacate  or  modify  a 

warrant,  or  increase  security. 

378.  Exception  to   and  justification 

of  sureties. 


Sec.  347.    In  what  actions  attacliment  may  l>e  issued.    C. 
C.  P.,  s.  197. 

A  wariant  of  attachment  against  the  pioperty  of  one 
or  more  defendants  in  an  action,  may  be  granted  upon  the 
apphcation  of  the  plaintiff,  as  specified  in  this  chapter, 
when  the  aciion  is  to  recover  a  sum  of  money  only,  or 
damages  for  one  or  more  of  the  following  causes: 

(1)  Breach  of  contract,  express  or  implied; 

(2)  Wrongful  conversion  of  personal  property; 

(3)  Any  other  injury  to  personal  property,  in  conse- 
quence of  negligence,  fraud,  or  other  wrongful  act. 

Ma-twell  V.  McBrayer,  Phil.,  527;  Marsh  v.  Williams,  63—371;  Hughes 
V.  Person,  63—548;  Wilson  v.  Barnhill,  64—121;  Backalan  v.  Liltlefield. 
64 — 233;  Mixer  v.  Guano  Co.,  65—552;  Toms  v.  Warson,  60—417;  Wheeler 
V.  Cobb,  73—21;  Montgomery  v.  Riley,  75-144;  Windley  v.  Bradway,  77— 
333;  Grant  v.  Burgwyn,  79— 513;  Price  v.  Cox,  83—261;  Faulk  v.  Smith, 
84—501. 

Sec.  348.    Warrant   to    accompany  summons,  or    to    be 
issued  afterward.    C.  C.  P.,  s.  197. 

The  warrant  of  attachment  may  be  granted  to  accom- 
pany the  summons,  or  at  any  time  after  the  commence- 
ment of  tlie  action.  Personal  service  of  the  summons 
must  be  made  upon  the  defendant  against  whose  prop- 
erty tlie  attachment  is  granted,  within  thirty  days  after 
the  granting  tliereof,  or  else  upon  the  expiration  of  the 
same  time,  service  of  summons  by  publication  must  be 
commenced  pursuant  to  an  order  obtained  therefor,  and 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE. 

if  publication  has  been,  or  is  thereafter  commenced,  t 
service  must  be  made    complete,   by  the   contmuance 
thereof. 

Price  V.  Cox,  83—261. 

Sec.  34:9.  What  must  be  shown  to  procure  the  warrant.  C. 
C.  P.,  s.  201. 

To  entitle  the  plaintiff  to  such  a  warrant,  he  must  show 
by  affidavit  to  the  satisfaction  of  the  court  grantmg  the 
same,  as  follows:  -^   i  •        „+,-„„ 

(1)  That  one  of  the  causes  of  action  specified  m  section 
three  hundred  and  forty-seven  exists  against  the  defend- 
ant If  the  action  is  to  recover  damages  for  breach  ot 
contract,  the  defendant  must  show  that  the  plamtitt  is 
entitled  to  recover  a  sum  stated  therein,  over  and  above 
all  counter-claims  known  to  him.  _ 

(2)  That  the  defendant  is  either  a  foreign  corporation, 
or  not  a  resident  of  the  state;  or,  if  he  is  a  natural  per- 
son and  n  resident  of  the  state,  that  he  has  departed 
therefrom,  with  intent  to  defraud  his  creditors,  or  to 
avoid  service  of  summons,  or  keeps  himself  concealed 
therein  with  like  intent;  or,  if  the  defendant  is  a  nat- 
ural person,  or  a  domestic  corporation,  that  he  or  it  has 
removed,  or  is  about  to  remove,  property  from  the  state, 
with  intent  to  defraud  his  or  its  creditors;  or  has  assigned, 
disposed  of,  or  secreted,  or  is  about  to  assign,  dispose  ot, 
or  secrete,  property  with  the  like  intent. 

Marsh  V  Williams,  63-371;  Hughes  v.  Person,  63-548;  Gashine  v. 
Bacr  64-108;  Wilson  v.  BarnhiU.  64-121;  Clark  v.  Clark,  64-150;  Back- 
alan'v  Littlefiekl,  64-233;  Brown  v.  Hawkins,  65-645;  Love  v.  Young, 
69-65-  Spiers  v.  Halstead,  71-209;  Palmer  v.  Bosher,  71-201;  Wood  v. 
Harrcl'  74-338;  Smith  v.  Gibson,  74-684;  Wheeler  v.  Cobb,  75-31;  Bur- 
well  v'  Lafferty,  76-383;  Hess  v.  Brower,  76-428;  Windley  v.  Bradway, 
77-333;  Branch  v.  Frank,  81-180;  BrufE  v.  Slern,  81-183;  Peebles  v. 
Foote,  83-102;  Faulk  v.  Smith,  84-501;  Devries  v.  Summit,  86—126. 

Sec  350.  Warrant  issued  by  justice  of  the  peace  ;  publi- 
cation to  be  made.  C.  C.  P.,  s.  198.  1S68-'9,C.  95, 
s.  3.     1870-'l,  c.  166,  s.  4.     1874-'5,  c.  111. 

The  plaintiff,  within  thirty  days  after  obtaining  a  war- 
rant of  attachment  from  a  justice  of  the  peace,  shall 
cause  publication  thereof  to  be  made  for  four  successive 
weeks  at  the  court-house  door  and  four  other  pubhc 
places  in  the  county  where  the  warrant  is  returnable. 

Marsh  V.  Williams,  63-371;  Love  v.  Young,  69-65;  Spiers  v.  Halstead. 
n— 209i  Wheeler  V.  Cobb,  75-21;  Burwell  v.  Lafferty,  76—383. 


132  CODE  OF  CIVIL  PEOCEDUEE.     [Chap.  10. 

Sec.  351.  Warrant,  by  whom  granted.  C.  C.  P.  s.  199. 
1869-'70,  c.  147.  1870-'l,  c.  166,  ss.  1,  3.  1874- 
'5,  c.  Ill,    1876-'7,  c.   251,  s.  1. 

If  the  action  be  not  founded  on  a  contract,  or  if  found- 
ed on  a  contract  and  the  sum  demanded  exceed  two  hun- 
dred dollars,  a  warrant  of  attachment  may  he  obtained 
from  the  judge  of  the  district  embracing  the  county  in 
which  the  action  has  been  instituted,  or  from  the  clerk  of 
the  superior  court  from  which  the  summons  in  the  action 
issued ;  and  it  may  be  issued  to  any  county  in  the  state 
where  the  defendant  has  property,  money,  effects,  choses 
in  action  or  debts  due  him,  aud  shall  be  made  returnable 
in  term  time  to  the  court  from  which  the  summons 
issued. 

Sec.  352.  Warrant,  liow  served.  1870-'l,  c.  166, 
s.  3,  1874-'5,  c.  Ill,  s.  2. 

_  When  the  warrant  of  attachment  is  taken  out  at  the 
time  of  issuing  the  summons,  and  the  summons  is  to  be 
served  by  publication,  the  order  shall  direct  that  notice 
be  given  in  said  publication  to  the  defendant  of  the  issu- 
ing of  the  attachment,  aud  when  the  warrant  of  attach- 
ment is  obtained  after  the  issuing  of  the  summons,  the 
defendant  shall  be  notified  by  publication  of  the  fact  for 
four  successive  weeks  in  some  newspaper  published  in 
the  county  to  which  it  is  returnable,  or  if  there  be  none 
such,  then  in  one  published  in  the  judicial  district  includ- 
ing said  county,  and  if  there  be  no  newspaper  published 
in  the  district,  then  in  any  newspaper  pubhshed  in  the 
state.  Said  publication  shall  state  the  names  of  the 
parties,  the  amount  of  the  claims,  and  in  a  brief  way  the 
nature  of  the  demand  and  the  time  and  place  to  Avhich 
the  warrant  is  returnable:  Provided,  that  in  proceedings 
by  attachment  begun  and  had  before  justices  of  the  peace, 
advertisement  in  a  newspaper  shall  not  be  necessary,  but 
in  all  such  cases,  advertisement  at  the  court  house  door 
and  four  other  public  places  in  the  county  shall  be  suf- 
ficient publication,  both  as  to  the  summons  aud  warrant 
of  attachment. 

Sec.  353.  When  w^arrant  granted  by  a  justice  of  the  peace. 
C.  C.  P.,  s.  200.     1876-'7,  c.  251. 

If  the  action  be  not  founded  on  contract,  and  the  value 
of  the  property  in  controversy  does  not  exceed  the  sum 
of  fifty  dollars,  the  warrant  of  attachment  may,  or  if  the 
action  be  founded  on  contract,  and  the  sura  demanded 
does  not  exceed  two  hundred  dollars,  the  warrant  of  at- 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDURE.  133 

tachment  must  be  obtained  from,  and  made  returnable 
before  some  justice  of  the  peace  of  a  county,to  the  super- 
ior court  of  which  it  might  have  been  returnable  had  the 
sura  demanded  exceeded  two  hundred  dollars,  or  bad  the 
action  not  have  been  founded  on  contract. 

Grier  v.  Rhyne,  67—333. 

Sec.  354.    Justice's  attachment  levied  on  land;  wliat  to 
be  done.    1868-'9,  c.  95,  s.  4. 

If  the  attachment  be  levied  on  real  property,  the  jus- 
tice shall  proceed  to  try  the  action,  but  shall  issue  no  ex- 
ecution to  sell  the  real  property,  and  shall  return  the 
papers  in  the  case  to  the  office  of  the  clerk  of  the  superior 
court  of  his  county,  where  the  judgment  shall  be  dock- 
eted. The  levy  of  the  attachment,  however,  shall  be  a 
lien  on  the  real  estate. 

Sec.  355.    Warrant  procured;  affidavits  to  be  filed.    C.  C. 
P.,  s.  301. 

It  shall  be  the  duty  of  the  plaintiff  procuring  a  warrant 
of  attachment,  within  ten  days  from  the  issuing  thereof, 
to  file  the  affidavits  on  which  the  same  was  gi-anted  in 
the  office  of  the  clerk  of  the  superior  court  to  which,  or 
with  the  justice  of  the  peace  before  whom  the  process  is 
made  returnable. 

Sec.  35G.    Undertaking  before  issuing  a  warrant.     C.  C. 
P.,  s.  202. 

Before  issuing  the  warrant,  the  officer  issuing  the  same 
shall  require  a  written  undertaking  on  the  part  of  the 
plaintiff,  with  sufficient  surety,  to  the  effect,  that  if  the 
defendant  recover  judgment,  or  the  attachment  be  set 
aside  by  order  of  the  court,  the  plaintiff  will  pay  all  costs 
that  may  be  awarded  to  the  defeudant,  and  all  damages 
which  he  may  sustain  by  reason  of  the  attachment,  not 
exceeding  the  sum  specified  in  the  undertaking,  which 
shall  be  at  least  two  hundred  dollars. 

Wheeler  v.  Cobb,  75—21. 

Sec.  357.     Warrant,  to  whom  directed  and  what  to  re- 
quire.   C.  C.  P.,  s.  303. 

The  warrant  shall  be  directed  to  the  sheriff  of  any 
county  in  which  the  property  of  such  defendant  may  be, 
or  in  case  it  be  issued  by  a  justice  of  the  peace  to  such 
sheriff  or  to  any  constable  of  such  county,  provided  such 
county  be  that  of  the  justice  issuing  the  warrant,  and 
shall  require  such  sheriff  or  constable  to  attach  and.  sate- 


134  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

ly  keep  all  the  property  of  such  defendant  within  his 
county,  or  so  much  thereof  as  may  be  sufficient  to  satisfy 
the  plaintiff's  demand,  the  amount  of  which  must  be 
stated  in  conformity  with  the  complaint,  together  with 
costs  and  expenses;  it  nmst  also  state  when  and  where  it 
shall  be  returned.  Several  warrants  may  be  issued  at 
the  same  time  to  the  sheriffs  of  different  counties. 

Backalan  v.  Littlefield,  64—233;  Wade  v.  New  Berne,  73—498;  Gamble 
V.  Rbyne,  80—183. 

Sec.  358.    Validity  of  undertaking. 

It  shall  not  be  a  defence  to  an  action  upon  an  under- 
taking, given  upon  granting  a  warrant  of  attachment, 
that  the  warrant  was  granted  improperly,  for  want  of  ju- 
risdiction, or  for  any  other  cause. 

Sec.  359.    Warrant,  liow  executed.    C.  C.  P.,  s.  204. 

The  officer  to  whom  such  warrant  of  attachment  is  di- 
rected and  delivered,  shall  seize  and  take  into  his  posses- 
sion the  tangible  personal  property  of  the  defend- 
ant, or  so  much  thereof  as  may  be  necessary, 
and  he  shall  be  liable  for  the  care  and  custody  of  such 
property,  as  if  the  same  had  been  seized  under  execution; 
he  shall  levy  on  the  real  estate  of  the  defendant  as  pre- 
scribed for  executions;  he  shall  make  and  return  with  the 
warrant,  an  inventory  of  the  property  seized  or  levied 
on;  subject  to  the  direction  of  the  court,  he  shall  collect 
and  receive  into  his  possession  all  debts  owing  to  the  de- 
fendant, and  take  such  legal  proceedings,  either  in  his 
own  name,  or  in  that  of  the  defendant,  as  may  be  neces- 
sary for  that  purpose. 

Backalan  v.  Littlefield,  64— S33;  Alexander  v.  Com'rs,  67—330;  Insurance 
Co.  V.  Davis,  68— 17;  Palmer  V.  Bosher,  71— 291;  Com'rs  v.  Riley,  75— 
144;  Carmer  v.  Evers,  80—55;  Gamble  v.  Rbyne,  80—183;  Blair  v.  Pur- 
year,  87—101. 

Sec.  360.  Proceedings  wlien  property  attached  is  per- 
ishable, or  a  vessel.  R.  C,  c.  7,  s.  6.  1777,  c.  115,  s. 
28.    C.  C.  P.,  s.  205. 

If  any  property,  so  seized,  shall  be  perishable,  or  of 
such  character  tbat  the  expense  of  keeping  it  until  the 
determination  of  the  suit  would  be  likely  to  exceed  one- 
fifth  of  its  value,  or  if  any  part  of  it  consists  of  a  vessel, 
or  of  any  share  or  interest  therein,  and  the  person  to 
whom  it  belongs,  or  his  agent,  shall  not  within  ten  days 
after  the  serving  of  such  attachment,  reclaim  the  same, 
the  sheriff  or  other  officer  having  possession    thereof, 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  135 

shall  apply  to  the  court  for  authority  to  sell  the  same, 
sSnrthe  circumstances;  and  the  ^ame  shal  be  so  d, 
under  the  order  and  direction  of  the  court,  and  the  pi  o- 
ceedso  such  sale  shall  be  liable  to  the  judgment  o> 
tained  upon  such  attachment,  and  ^hal  be  reta med  by 
the  sheriff  or  other  officer  to  await  such  judgment. 

Haywood  v.  Hardie,  76—384. 

Sec.  361.  Defeudaut  may  replevy  before  sale.    B.  C,  c.  7, 
s.  5.    1777,  c.  115,  s.  28.  .     -,  .     ,         ij 

The  person  owning  the  property,  advertised  to  be  sold 
accoidino  to  the  provisions  of  this  sub-chapter,  liis  agent 
o  Attorney  may  at  any  time  before  -«- ^^plevy  he 
same  by  giving  an  undertaking,  m  double  the  amount 
ofThe  vfxlue  of^the  property  with  ^-ffi^-f.^^^tfe'r  S  or 
effect  that  he  will  return  the  property  to  the  &b«iitt.  1^^ 
other  officer,  if  return  thereof  be  adjudged  by  the  con 
and  pay  all  costs  that  may  be  awarded  agamst  hnn;  and 
if  return  of  said  property  cannot  be  had,  then  that  he 
win  p!y  plaintiff  the  value  of  said  property,  and  all  co  t. 
and  daraa-es  that  may  be  awarded  against  him.  And 
upon  trelecutionof'this  undertaking  ^e  shenff  or 
other  officer,  shall  deUver  said  property  to  the  person 
ownina:  the  same.  _   „.         _,„  , 

Cherry  V.  Nelson,  7  Jon.,  141;  Barry  v.  Sinclair.  Phil..  7;  Sims  v.  Goet- 
tie,  8S— 268. 

Sec    363.  Interest  in  corporations  or  associations  liable 
to  attachment.    C.  C.P.,  s.  206.  . 

The  rights  or  shares  which  the  defendant  may  have  m 
the  stock  of  any  association  or  corpoi-ation,  together  wi  h 
the  interests  and  profits  thereon,  and  all  other  property 
m  this  state  of  sich  defendant,  shall  be  liable,  to  be  at- 
tached and  levied  on,  and  sold  to  satisfy  the  judgment 
and  execution. 

Sec.  363.  Attachment,  how  executed  on  property  incapa- 
ble of  manual  delivery.    C.  C.  P.,  s.  307. 

The  execution  of  the  attachment  upon  any  such  rights, 
shares  or  any  debts  or  other  property  incapable  of  man- 
ual dehvery  to  the  sheriff,  shall  be  made,  by  leaving  a 
c?rtified  copy  of  the  warrant  of  attachment  with  the 
preSdent  or  other  head  of  the  association  or  corporation 
or  with  the  secretary,  cashier  or  managing  agent  thereof, 
o?  with  the  debtor  or  individual  holding  such  property, 
with  a  notice  showing  the  property  levied  on. 


136  CODE  OF  CIVIL  PEOCEDURE.     [Chap.  10 

Sec.  3G4.  A  garnishee  summoned  to  answer  on  oath; 
judgment  against  garnisliee.  K.  C,  c.  7,  s.  7.  1777, 
c.  115,  s.  28. 

When  the  sheriff  or  other  oflScers  shall  serve  an 
attachment  on  any  person  supposed  to  be  mdebted  to,  or 
to  have  any  effects  of  the  defendant  in  the  attachment, 
he  shall  at  the  time  summons  such  person  as  a  garnishee 
in  writing,  to  appear  at  the  court  to  which  the  attach- 
ment shall  be  returnable,  or  if  issued  by  a  justice  of  the 
peace  at  a  place  and  time  named  in  the  notice,  not  ex- 
ceeding twenty  days  from  date  of  notice,  to  answer 
upon  oath  what  he  owes  to  the  defendant,  and  what 
effects  of  the  defendant  he  hath  in  his  hands,  and  had  at 
the  time  of  serving  such  attachment,  and  what  effects 
or  debts  of  the  defendant  there  are  in  the  hands  of  any 
other,  and  what  person,  to  his  knowledge  and  behef ;  and 
when  an  attachment  shall  be  served  on  any  garnishee  in 
manner  aforesaid,  it  shall  be  lawful  upon  his  appearance 
and  examination  to  enter  up  judgment  and  award  execu- 
tion for  the  plaintiff  against  such  garnishee,  for  all  sums 
of  money  due  to  the  defendant  from  him,  and  for  all 
effects  and  estates  of  any  kind  belonging  to  the  defend- 
ant, in  liis  possession  or  custody,  for  the  use  of  the 
plaintiff,  or  so  much  thereof  as  "shall  he  sufficient  to 
satisfy  the  debt  and  costs  and  all  charges  incident  to 
levying  the  same;  and  all  goods  and  effects  whatsoever 
in  the  hands  of  any  garnishee  belonging  to  the  defendant, 
shall  be  liable  to  satisfy  the  plaintiff's  judgment,  and 
shall  be  delivered  to  the  sherilf  or  other  officer  serving 
the  attachment. 

Russell  V.  Hiuton,  1  Mur..  468;  Freeman  v.  Grist,  1  D.  &  B.,  217;  Patton 
V.  Smith,  7  Irecl.,  438;  Myers  v.  Beeman,  9  Ired.,  116;  Houston  v.  Porter, 
10  Ired.,  174;  Orraond  v.  Moye,  11  Ired.,  564;  TiudcU  v.  Wall,  Busb., 
3;  Spruill  v.  Trader,  5  Jon.,  39;  Clieny  v.  Nelson,  7  Jon.,  141;  Barrj' v. 
Sinclair,  Phil.,  7;  Parker  v.  Scott,  64 — 118;  Shuler  v.  Bryson,  65— 201 ; 
Tate  V.  Morehead,  65—681. 

Sec.  365.  Proceedings  against  garnishee  failing  to 
appear.  K.  C,  c.  7,  s.  8.  1777,  c.  116,  s.  38.  1838, 
c.  3. 

When  any  garnishee  shall  be  summoned  as  aforesaid, 
and  shall  fail  to  appear  and  discover  on  oath  as  directed, 
the  court,  after  solemnly  calling  the  garnisbee,  shall 
enter  a  conditional  judgment  against  him,  and  tiiereupon 
a  notice  shall  issue  against  him  returnable  to  the  court 
having  jurisdiction,  to  show  cause  why  final  judgment 
shall  not  be  entered  against  him;  and  if,  upon  due  exe- 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDURE.  13T 

cution  thereof,  such  garnishee  shall  fail  to  appear  at  the 
time  and  place  named  in  the  notice,  and  discover  on  oath 
in  manner  aforesaid,  the  court  shall  confirm  said  judg- 
ment and  award  execution  for  the  plaintiff's  whole  judg- 
ment and  costs;  and  if,  upon  examination  of  the 
garnishee,  it  shall  appear  to  the  court  that  there  is  any 
of  the  defendant's  estate  iu  the  hands  of  any  person 
who  has  not  been  summoned,  the  court  shall,  upon 
motion  of  the  plaintiff,  grant  a  judicial  attachment,  to 
be  levied  in  the  hands  of  every  such  person  having  any 
of  the  estate  of  the  defendant  in  his  custody  or  posses- 
sion, who  shall  appear  and  answer,  and  shall  be  liable  as 
other  garnishees. 

Sec.  366.  Garnishee  denying  he  has  any  property;  issue 
to  be  made  up.    B.  C,  c.  7,  s.  9.    1793,  c.  389,  s.  2. 

When  any  garnishee  shall  deny  that  he  owes  to,  or  has 
in  his  possession  any  property  of,  the  defendant,  and  the 
plaintiff  shall  on  oath  suggest  to  the  court  the  contrary; 
or  when  any  garnishee  shall  make  such  a  statement  of 
facts  that  the  court  cannot  proceed  to  give  judgment 
thereon,  then  the  court  shall  order  an  issue  to  be  made 
up,  which  shall  be  tried  by  a  jury,  and  on  their  verdict 
judgment  shall  be  rendered:  Provided,  that  in  a  court  of 
a  justice  of  the  peace,  he  may  try  such  issue,  unless  a 
jury  be  demanded,  and  then  proceedings  are  to  be  con- 
ducted, in  all  respects,  as  in  jury  trials  before  courts  of 
justices  of  the  peace. 

Cowles  V.  Oaks,  3  Dev.,  96. 

Sec.  367.  Articles  confessed  by  garnishee,  to  be  valued  by 
jury  and  judgment  for  their  value;  in  what  cases  gar- 
nishee excused.  B.  C,  c.  7,  s.  11.  1793,  c.  389,  s.  1. 
1794,  c.  434,  s.  1. 

When  a  garnishee  shall  on  oath  confess  that  he  has  in 
his  hands  any  property  of  the  defendant  of  a  specific  na- 
ture, or  is  indebted  to  such  defendant  by  any  security  or 
assumption  for  the  delivery  of  any  specific  article,  except 
as  hereinafter  excepted,  then  the  court  shall  immediately 
order  a  jury  to  be  impaneled  and  sworn  to  inquire  of  the 
value  of  such  specific  property,  and  theverdict  ofthe  jury 
shall  subject  such  garnishee  to  the  payment  of  the  valu- 
ation, or  so  much  thereof  as  shall  be  sufficient  to  satisfy 
the  debt  or  damages,  and  costs  to  the  plaintiff:  Provided, 
that  in  a  court  of  a  justice  of  the  peace,  he  may  try  such 
issue,  unless  a  jury  be  demanded,  and  then  proceedings 
are  to  be  conducted  iu  all  respects  as  in  jury  trials  before 


138  CODE  OF  CIVIL  PROCEDUEE.     [Chap.  10. 

couits  of  justices  of  the  peace.  Provided,  further,  that 
if  such  garnishee  shall  also  state  in  his  answer  that  said 
specific  property  was  left,  or  deposited,  in  his  possession 
by  the  defendant  as  a  bailment,  or  that  he  hath  tendered 
said  specific  articles  agreeable  to  contract,  and  that  they 
were  refused  by  the  defendant,  and  that  he  then  was,and 
always  had  been,  ready  to  deliver  the  same;  or  that  he 
had  such  specific  articles  at  the  time  and  place  specified  in 
such  covenant  or  agreement  ready  to  be  delivei'ed,  and  is 
still  ready  to  deliver  the  same;  and  such  statement  shall 
be  admitted  by.  the  plaintiff  or  found  by  a  jury  or  the 
court,  then  in  any  such  case,  the  garnishee  shall  be  exon- 
erated by  the  delivery  of  such  specific  articles  to  the  sher- 
iff, who  shall  proceed  as  if  the  attachment  had  been 
originally  levied  on  the  property. 
Cherry  v.  Hooper,  7  Jon.,  82. 

Sec.  368.  Judgment  conditional  ag'ainst  garnishee,  when. 
R.  C,  c.  7,  s.  12.     1794,  c.  424,  s.  2. 

When  any  garnishee  shall  declare  in  his  answer,  that 
the  money  or  specific  article  due  by  him  will  become  pay- 
able or  deliverable  at  a  future  day,  and  the  same  shall  be 
admitted  by  the  plaintiff  or  found  by  a  jury  or  the  court, 
in  such  case  conditional  judgment  shall  be  entered 
against  the  garnishee,  and  the  plaintiff  may  obtain  judg- 
ment against  the  defendant  for  his  demand,  but  shall  not 
take  final  judgment  against  the  garnishee  without  notice 
to  show  cause. 

Sec.  369.    Certificate  of  defendant's  interest  to  be  fur- 
nished.   C.  C.  P.,  s.  208. 

Whenever  the  sheriff  or  other  lawful  officer  with  a 
warrant  of  attachment  or  execution,  shall  apply  to  any 
officer  mentioned  in  section  three  hundred  and  sixty  three, 
or  to  any  debtor  or  individual,  for  the  purpose  of  attaching 
or  levying  on  the  pioperty  of  the  defendant  in  such  war- 
rant, such  officer,  debtor  or  individual  shall  furnish  him 
with  a  certificate  under  his  hand,  designating  the  numlier 
of  rights  or  shares  of  the  defendant  in  such  association 
or  corporation,  with  any  dividend  or  any  incumbrance 
thereon,  or  the  amount  and  description  of  the  property 
held  by  such  association,  corporation,  or  individual,  for 
the  benefit  of,  or  debt  owing  to  the  defendant.  If  such 
officer,  debtor  or  individual  refuse  to  do  so.  he  may  be  le- 
quired  by  the  court  or  judge  to  attend  before  him,  and  be 
examined  on  oath  concerning  the  same,  and  obedience  to 
such  ordei-  may  be  enforced  by  attachment. 

Gamble  v,  Rliyne,  80—183. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  ^>^ 

See  370.  Judgment,  how  satisfied.    C.  C.  P.,  s.  209. 

Ill  case  iudament  be  entered  for  the  plaintiff  in  such 
action,  the  sheriff  shall  satisfy  the  same  out  of  the  prop- 
erty attached  by  him,  if  it  shall  be  sufficient  for  that  pur- 

^Tri  Bv  paying;  over  to  such  plaintiff  the  proceeds  of  all 
property  sold  by  him,  and  of  all  debts  or  credits  collected 
by  him,  or  so  much  as  shall  be  necessary  to  satisfy  such 

iudgment;  ,  i.-        i,  n 

(2)  If  any  balance  remain  due,  and  an  execution  shall 
have  been  issued  on  such  judgment,  he  shall  proceed  to 
sell  under  such  execution  so  mucli  of  the  attached  prop- 
erty real  or  personal,  except  as  provided  m  subdivision 
four  of  this  section,  as  may  be  necessaiy  to  satisfy  the 
balance,  if  enough  for  that  purpose  shall  remain  m  his 
hands;  and  in  case  of  the  sale  of  any  rights  or  shares  m 
the  stock  of  a  corporation  or  association,  the  sheriff  shall 
execute  to  the  purchaser  a  certificate  of  sale  thereof 
and  the  purchaser  shall  thereupon  have  all  the  rights  and 
privileges  in   respect  thereto  which  were  had  by  such 

defendant;  ,     ,  x     i    i        •        +     i-u^ 

(3)  If  any  of  the  attached  property  belonging  to  the 
defendant,  shall  have  passed  out  of  the  hands  of  the 
sheriff  without  having  been  sold  or  converted  into  money, 
such  sheriff  shall  repossess  himself  of  the  same  and  for 
that  purpose,  shall  have  all  the  authority  which  he  had 
to  seize  the  same  under  the  attachment:  and  any  person 
who  shall  wilfully  conceal  or  withhold  such  property 
from  the  sheriff,  shall  be  hable  to  double  damages  at  the 
suit  of  the  party  injured;  _  +    u  n  k^ 

(i)  Until  the  judgment  against  the  defendant  shall  be 
paid  the  sheriff  may  proceed  to  collect  the  notes  and 
other  evidences  of  debt,  and  the  debts  that  may  hav-e 
been  seized  or  attached,  under  the  warrant  of  attachment, 
and  to  prosecute  any  bond  he  may  have  taken  m  the 
course  of  such  proceedings,  and  apply  the  proceeds  there- 
of to  the  payment  of  the  judgment  ,,,,,.         . 

At  the  expiration  of  six  months,  from  the  docketing  ot 
the  judgment,  the  couit  shall  have  power  upon  the  peti- 
tion of  the  plaintiff,  accompanied  by  an  affidavit  setting 
forth  fully  all  the  proceedings  which  have  been  had  by 
the  sheriff,  since  the  service  of  the  attachment  the 
property  attached,  and  the  disposition  thereof,  and  also 
the  atfidavit  of  the  sheriff  that  he  has  used  due  diligence, 
and  endeavored  to  collect  the  evidences  ot  debt  m  Ins 
hands  so  attached,  and  that  there  remains  uncollectecl  ot 
the  same,  any  part  or  portion  thereof,  to  order  the  shentt 


140  CODE  OF  CIVIL  PROCEDURE.    [Chap.  10. 

to  sell  the  same  upon  such  terms  and  in  such  manner  as 
shall  be  deemed  proper.  Notice  of  such  application  shall 
he  given  to  the  defendant  or  to  his  attorney,  if  the  defend- 
ant shall  have  appeared  in  the  action.  In  case  the  sum- 
mons has  not  been  personally  served  on  the  defendant, 
the  court  shall  make  such  rule  or  order,  as  to  service  of 
notice,  and  time  of  service,  as  shall  be  deemed  just. 
When  the  judgment  and  all  costs  of  tlae  proceedings  shall 
have  been  paid,  tlie  siieritf  upon  reasonable  demand,  shall 
deliver  over  to  the  defendant  the  residue  of  the  attached 
property,  or  the  proceeds  thereof. 

Copper  Co.  v.  Martin,  70—300;  Com'rs  v.  Riley,  75—144 ;  Gamble  v.  Rhyne, 
80—183. 

Sec.  371.  When  action  to  recover  notes,  &c.,  of  defend- 
ant may  be  prosecuted  by  plaiutiflfin  the  action  in  which 
the  attachment  issued.    C.  C.  P.,  s.  210. 

The  actions  herein  authorized  to  be  brought  bv  the 
sheriff  may  be  prosecuted  by  the  plaintiff,  or  under  his 
direction,  upon  the  delivery  by  him  to  the  sheriff',  of  an 
undertaking  executed  by  two  sufficient  sureties,  to  the 
effect  that  the  plaintiff  will  indemnify  the  sheriff  from  all 
damages,  costs  and  expenses  on  account  thereof,  not  ex- 
ceeding two  hundred  and  fifty  dollars  in  any  one  action. 
Such  sureties  shall,  in  all  cases  when  required  by  the 
sheriff,  justify  by  making  an  affidavit  that  each  is  a 
freeholder,  and  worth  double  the  amount  of  the  penalty 
of  the  bond,  over  and  above  all  demands,  liabilities  and 
exemptions. 

Shuler  T.  Bryson,  05-201 ;  Carmcr  v.  Evcrs,  80—55. 

Sec.  372.  Bond  of  plaintiff,  how  disposed  of,  on  judg- 
mentfor  defendant.    C.  C.  P.,  s.  211. 

If  the  foreign  corporation,  or  the  absent,  absconding, 
or  concealed  defendant,  recover  judgment  against  the 
plaintiff  in  such  action,  any  bond  taken  upon  the  issuing 
of  the  warrant  of  attachment,  and  any  bond  taken  by  the 
sheriff,  except  such  as  are  mentioned  in  the  preceding  sec- 
tion, all  the  proceeds  of  sales  and  moneys  collected  by 
him,  and  all  the  property  attached  remaining  in  his 
hands,  shall  be  delivered  by  him  to  the  defendant  or  to 
his  agent,  on  request,  and  the  warrant  shall  be  discharged 
and  the  property  released. 

Sec.  373.  Attachment  discharged,  and  property  or  its 
proceeds  returned  to  the  defendant  on  liis  appearance 
in  action.    C.  C.  P.,  s,  212.     1870-'l,  c.  IGC. 

Whenever  the  defendant  shall  have  appeared  in  such  ac- 


Chap.  10.]    CODE  OF  CiViL  PROCEDUEE.  141 

tion,  he  may  apply  to  the  court  in  which  the  action  is 
pending,  or  to  the  judge  thereof,  for  an  order  to  dis- 
charge the  same;  and  if  the  same  be  granted,  all  the  pro- 
ceeds of  sale,  and  moneys  collected  in  such  action  and 
all  the  property  attached  remaining  in  the  hands  ot 
any  officer  of  the  court,  under  any  process  or  order  in 
such  action,  shall  be  delivered  or  paid  to  the  defendant 
or  to  his  agent,  and  released  from  the  attachment.  And 
where  there  is  more  than  one  defendant,  and  several 
nroperty  of  either  of  the  defendants  has  been  seized  by 
virtue  of  the  order  of  attachment,  the  defendant,  whose 
several  property  has  been  seized,  may  apply  mlike  man- 
ner for  relief.  „  .  _x  , 
Bearv.  Cohen,  65-511;  Palmer  v.  Boslier,  71-291;  Rahity  v.  Strmgfel- 
low,  73-338;  Palmer  v.  Boslier,  73—371;  Devries  v.  Summit,  86—136. 

Sec.  374.    Undertaking  of  defendant  on  appearance  to 
discharge  the  property.    C.  C.  P.,  s.  313. 

Upon  such  application  the  defendant  shall  dehver  to 
the  court  an  undertaking,  executed  by  two  sureties  resid- 
ing in  this  state,  approved  by  such  court,  to  the  ettect 
that  such  surety  will,  on  demand,  pay  to  the  plaintitl  the 
amount  of  judgment  that  may  be  recovered  against  the 
defendant  in  the  action,  not  exceeding  the  sum  specified 
in  the  undertaking,  which  shall  be  at  least  double  the 
amount  claimed  by  the  plaintiff  in  his  complaint.  If  it 
shall  appear  by  affidavit,  that  the  property  attached  be 
of  less  value  than  the  amount  claimed  hy  the  plamtitt, 
the  couit  or  judge  may  order  the  same  to  be  appraised, 
and  the  amount  of  the  undertaking  shall  then  be  double 
the  amount  so  appraised.  And  where  there  is  more  than 
one  defendant,  and  several  property  of  either  of  the  de- 
fendants has  been  seized  by  virtue  ot  the  order  of  attach- 
ment the  defendant  whose  several  property  has  been 
seized  may  deliver  to  the  court  an  undertaking,  m  ac- 
cordance with  this  section,  to  the  effect  that  he  wiU,  on 
demand,  pay  to  the  plaintiff  the  amount  of  judgment  that 
may  be  recovered  against  such  defendant.  And  all  of  this 
section,  applicable  to  such  an  undertaking,  shall  be  apphed 
thereto.  ,^  ^^     ., 

Stephenson  v.  Todd.  C3-368;  Boar  v.  Cohen,  65-511;  Myers  v,  Hamd- 
ton.  65-567;  Brown  v.  Hawkins,  65-645;  Canal  Co.  v.  McAllister,  74— 
159';  Weller  V.  Lawrence,  81—65;  BrufE  v.  Stern,  81—183. 

Sec  375.    Property  claimed  by  third  party,  may  inter- 
plead.   K.  C,  c.  7,  s.  10.     1793,  c.  389,  s.  3. 

When  the  property  attached  shaU  be  claimed  by  any 


U2  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

other  person,  the  claimant  may  interplead,  as  provided 
in  section  three  hundred  and  thirty-one. 

Simpson  v.  Harry,  1  D.  &  B.,  202;  JIcLean  v.  Douglass,  6  Ired.,  233 ■ 
Evans  v.  Mining  Cv.,  5  Jon.,  331;  Cherry  v.  Nelson,  7  Jon.,  141 ;  Bunk  v. 
Spurling,  7  Jon.,  398;  Sims  v.  Gocttle,  82—268;  Sims  v.  GoetUe,  82—271; 
Blair  v.  Puryear,  87—101. 

Sec.  376.     When  the  sheriff"  to  return  warrant,  with  his 
proceeding-s  thereon.    C.  C.  P.,  s.  214. 

The  sherifif  shall  I'eturn  the  warrant  of  attachment,and 
the  undertakings  provided  for  in  this  chaptei-,  with  a 
statement  of  his  proceedings  thereon,  at  the  time  and 
place  at  which  it  is  on  its  face  returnable,  and  upon,  or 
at  any  time  after,  such  return,  he  may  obtain  from  the 
court  to  which  the  same  was  returnable,  a  certified  copy 
thereof,  which  shall  be  held  and  deemed  for  the  purpose 
of  giving  him  authoiity,  the  same  as  the  original,  and 
when  the  warrant  shall  have  been  fully  executed  or  dis- 
chaiged,  the  sheriff  shall  return  the  same,  with  his  pro- 
ceedings, to  said  court. 

Sec.  377.    Motion  to  vacate  or  modify  warrant,  or  increase 
security. 

The  defendant,  or  a  person  who  has  acquired  a  lien 
upon,  or  interest  in,  his  property  after  it  was  attached, 
may  at  any  time  before  the  actual  application  of  the  at- 
tached property,  or  the  proceeds  thereof,  to  the  payment 
of  a  judgment  recovered  in  the  action,  apply  to  the  court 
having  jurisdiction  to  vacate  or  modify  the  warrant,  or 
to  increase  the  security  given  by  the  plaintiff,  or  for  one 
or  more  of  those  forms  of  relief,  together  or  in  the  alter- 
native, as  in  cases  of  other  provisional  remedies. 

Bear  V.  Coben,  65—511 ;  Brown  v.  Hawkins,  65—645;  Brull  v.  Stern,  81— 
183;  Devries  v.  Summit,  86—126. 

Sec.  378.    Exception  to  and  justification  of  sureties. 

The  sureties  to  all  undertakings  in  all  proceedings  for 
attachment  may  be  excepted  to,  and  justified  as  requii-ed 
in  action  for  claim  and  dehvery. 


Chap.  10.1    CODE  OF  CIVIL  PROCEDURE.  U3 


CHAPTER  FIVE. 

APPOINTMENT  OF  EECEIVERS  AND  OTHEK  PEOVIS- 
lONAL  REMEDIES. 

Section  I  SJ^otion. 

379.  Appuiutment  ot  receivers.  382.  Judgment  for  sum  admitled  to 


880.   Property  licld  by  trustees. 
381.  Judge  may  puuish  disobedieuee 
lo  order. 


be  due. 
383.  Keceiver  to  give  security. 


Sec.  379.    A4,i.oiutiacnt   of  receivers.      C.  C.  P.,   s.   215. 
1876-'7,  c.  23.3.     1879,  c.  6.-?.     1881,  c.  51. 

A  iudge  of  the  superior  court  having  authority  to  grant 
restrainmg  orders  and  injunctions,  as  prescribed  ni  title 
nine  sub'chapter  three  of  this  chapter,  shal  have  the 
Uke  iurisdiction  in  appointing  receivers,  and  all  motions 
to  show  cause  shall  be  returnable  as  is  provided   for  in- 

iunctions.  . 

A  receiver  may  be  appointed— 

(1^  Before  iudgment,  on  the  application  of  eithei 
party,  when  he  establishes  an  apparent  right  to  property 
wlch  is  the  subject  of  the  action,  and  which  is  m  the 
possession  of  an  adverse  party,  and  the  property  or  its 
rents  and  profits,  are  in  danger  of  being  lost,  or  materiab 
vhijSm-  impaired;  except  in  cases  where  judgment 
upon  failure  to  answer  may  be  had  on  application  to  the 

""'^("'l 'After  judgment,  to  carry  the  judgment  into  effect; 
3  After  jud|ment,  to  dispose  of  the  property  accord- 
ing to  the  judgment,  or  to  preserve  it  during  the  pen^l- 
ln?y  of  an  appeal,  or  when  an  execu  ion  has  been 
Srned  unsatisfied,  and  the  judgment  debtor  re  uses  to 
apply  his  property  in  satisfaction  of  the  .pidgment;       _ 

O)  Incases  provided  in  said  chapter  and  by  special 
statutes  when  a  corporation  has  been  dissolved,  or  is 
iiiroUent  orin  imminent  danger  of  insolvency,  or  has 
"Sted  its  corporate  rights;  and  in  like  cases,  of  the 
property  within  this  state  of  foreign  corporations.  Re- 
ceived of  the  property  within  this  state  of  foreign  or 
other  corporations  shall  be  allowed  such  commissions  as 
may  be  fixed  bv  the  judge  appointing  them,  not  exceed- 
Sg^five  per  cent   on  the  amount  received  and  disbursed 

^Pa^tkrv^Spiiukle,  G4-637;  Richards  v.   Baurman,   65-163;  Skinner  v. 


lU  CODE  OF  CIVIL  PEOCEDUEE.     [Chap.  10. 

Maxwell,  66—45;  Howes  v.  Mauney,  66—218;  Battle  v.  Davis,  60-253; 
Skinner  v.  JIaxwell,  68 — 400;  Rankin  v.  Minor,  72 — 124;  Righton  v.  Prii- 
den,  73— 6i;  Gray  v.  Gaitlier,  74—237;  Ten-Broeck  v.  Orcliard,  74 — 409; 
Rollins  V.  Henry,  77 — 467;  Dobson  v.  Simonton,  78—63;  Kerchner  v. 
Fairley,  80—24:  Twitty  v.  Losan,  80—69;  Corbin  v.  Berry,  83—27;  Nesbitt 
V.  Turrentine,  83—535;  Oldham  v.  Bank,  84^304. 

Sec.  380.  Property  held  by  trustees.    C.  C.  P.,  s.  215. 

When  it  is  admitted,  by  the  pleading  or  examination 
of  a  party  that  he  has  in  his  possession,  or  under  his  con- 
trol, any  money  or  other  thing  capable  of  delivery, 
which,  being  the  subject  of  the  litigation,  is  held  by  him 
as  trustee  for  another  party,  or  which  belongs  or  is  due 
to  another  party,  the  judge  may  order  the  ^ame  to  be 
deposited  in  court,  or  delivei'ed  to  such  party,  with  or 
without  security,  subject  to  the  further  direction  of  the 
judge. 

Parker  v.  Bledsoe,  87—231. 

Sec.  381.  Judge  may  punish  disobedience  to  order.    C.  C. 
P.,  s.  215. 

Whenever,  in  the  exercise  of  his  authority,  a  judge 
shall  have  ordered  the  deposit,  delivery  or  conveyance 
of  money  or  other  property,  and  the  order  is  disobeyed, 
the  judge,  besides  punishing  the  disobedience  as  for  con- 
tempt, may  make  an  order  requiring  the  sheriff  to  take 
the  money  or  property,  and  deposit,  deliver,  or  convey  it, 
in  conformity  with  the  direction  of  the  judge. 

Sec.  382.    Judgment  for  sum  admitted  to  be  due.    C.  G. 
P.,  s.  215. 

When  the  answer  of  the  defendant  expressly,  or  by 
not  denying,  admits  part  of  the  plaintiff's  claim  to  be 
just,  the  judge,  on  motion,  may  order  such  defendant  to 
satisfy  that  part  of  the  claim,  and  may  enforce  the  order 
as  it  enforces  a  judgment  or  provisional  remedy. 

Skinner  v.  Maxwell,  68 — 400;  Rankin  v.  Minor,  73 — 134;  Gray  v.  Gaither, 
74^237;  Rollins  v.  Henry,  77—467. 

Sec.  383.    Receiver  to  give  security. 

A  receiver  appointed  in  an  action  or  special  proceeding 
must,  before  entering  upon  his  duties,  execute  and  file 
with  the  clerk  of  the  court  wherein  the  action  is  pend- 
ing, an  undertaking  payable  to  the  adverse  party  with  at 
L'ast  two  sufficient  sureties  in  a  penalty  fixed  by  the 
judge  or  justices,  making  the  ai)pointment,  conditioned 
for  the  faithful  discharge  of  his  duties  as  receiver.    And 


Chap.  10.]    CODE  OF  CIVIL  PROCEDUEE.  145 

the  judge  or  justices,  having  jurisdiction  thereof,  may  at 
any  time  remove  the  receiver,  or  direct  him  to  give  a 
new  undertaking,  with  new  sureties,  with  the  hke  con- 
dition. But  this  section  does  not  apply  to  a  case  where 
special  provision  is  made  by  law,  for  the  security  to  be 
given  by  a  receiver,  nor  for  increasing  the  same,  nor  for 
removing  a  receiver. 

Lord  V.  Meroney,  79—14;  Bank  v.  Creditors,  86—233. 


TITLE  X. 

OP  THE  TRIAL  AND  JUDGMENT  IN  CIVIL  ACTIONS. 

Chap.    I.  Judgment  upon  Failure  to  Answer. 
II.  Issues  and  the  Mode  of  Trial. 

III.  Trial  by  Jury. 

IV.  Trial  by  Court. 
V.  Trial  by  Referee. 

VI.  The  Manner  of  Entering  Judgment. 


CHAPTER  ONE. 
JUDGMENT  UPON  PAILURE  TO  ANSWER. 


Section. 

384.  Judgment  defined. 

885.  Judgment  by  default  final,  in 
■what  cases. 

386.  [n  all  other  actions  upon  failure 
to  answer,  judgment  by  default 
and  inquiry. 

887  Judgment  against  infants  in  cer- 
tain cases  validated. 


Section. 

388.  Judgment     on    frivolous     de- 

murrer, answer  or  n  ply. 

389.  Provisions  of  this  chapter  ap 

plicable  to  courts  of  jusiices  of 
the  peace. 

390.  In  actions  to  recover  real  prop- 

erty or  the  possession  thereof. 


Sec.  384.  Judgment  defined.    C.  C.  P.,  s.  216. 

A  judgment  is  either  interlocutoiy,  or  the  final  deter- 
mination of  the  rights  of  the  parties  in  the  action. 
Gibson  v.  Groner,  C3— 10;  Mitchell  v.  Henderson,  63—643;  Garrett  t. 
7 


146  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

Smith,  64-93;  Brown  v.  Foust,  64—672;  Lee  v.  Pearce,  68—76;  Hutchin- 
son v.  Smith,  68 — 354;  Dunn  v.  Barnes,  73 — 273;  Davidson  v.  Alexander, 
84^621;  Miller  v.  Justice,  86—26;  McDonald  v.  Dickson,  87—404. 

Sec.  385.  Judgment  by  default  final,  in  what  eases.    C.  C. 
P.,  s.  217.     1870-'l,  c.  42. 

Judgment  by  default  final  may  be  had  on  failure  of 
defendant  to  answer,  as  follows: 

(1)  Where  complaint  sets  forth  one  or  more  causes  of 
action,  each  consisting  of  the  breach  of  an  express  or  im- 
plied contract  to  pay,  absolutely  or  upon  a  contingency,  a 
sum  or  sums  of  money  fixed  by  the  terms  of  the  contract, 
or  capable  of  being  ascertained  therefrom  by  computa- 
tion. Upon  proof  of  jieisonal  service  of  summons,  or  of 
service  of  summons  by  publication,  on  one  or  more  of  the 
defendants,  and  upon  the  complaint  being  verified,  judg- 
ment shall  be  entered  at  the  return  term  for  the  amount 
mentioned  in  the  complaint,  against  the  defendant  or  de- 
fendants, or  against  one  or  more  of  several  defendants, 
in  the  cases  provided  in  section  two  hundred  and  twenty- 
two. 

(2)  Where  the  defendant,  by  his  answer  in  such  action, 
shall  not  deny  the  plaintiff's  claim,  but  shall  set  up  a 
counter-claim,  amounting  to  less  than  the  plainti<if's 
claim,  judgment  may  be  had  by  the  plaintiff  for  tlie  ex- 
cess of  said  claim  over  the  said  counter-claim,  in  like 
manner  in  any  such  action,  upon  the  plaintiff's  filing  with 
the  court  a  statement  admitting  such  counter-claim, 
which  statement  shall  be  annexed  to  and  be  a  part  of  the 
judgment-roll. 

(3)  In  actions  where  the  service  of  the  summons  was 
by  pubhcation,  the  plaintiff  may,  in  like  manner,  apply 
for  judgment,  and  the  court  must  thereupon  require 
proof  to  be  made  of  the  demand  mentioned  in  the  com- 
plaint, and  if  the  defendant  be  not  a  resident  of  the  state, 
must  require  the  plaintiff  or  his  agent  to  be  examined  on 
oath  respecting  any  payments  that  have  been  made  to  the 
plaintiff,  or  to  any  one  for  his  use  on  account  of  such  de- 
mand, and  may  render  judgment  for  the  amount  which 
he  is  entitled  to  recover.'  Before  rendering  judgment  the 
court  may  in  its  discretion  require  the  plaintiff  to  cause 
to  be  filed"  satisfactory  secuiity,  to  abide  the  order  of  the 
court,  touching  the  restitution  of  any  estate  or  effects 
which  may  be  directed  by  such  judgment  to  be  trans- 
ferred or  delivered,  or  the  restitution  of  any  money 
that  may  be  collected  under  and  by  virtue  of  said  judg- 
ment, in  case  the  defendant  or  his  representatives  shall 


Chap.  10.]    CODE  OF  CIVIL  PROCEDUEE.  147 

apply  and  be  admitted  to  defend  the  action,  and  shaU 
succeed  in  such  defence. 

Price  V.  Cox,  83—261;  Avery  v.  Henry,  83—298;  Wynne  v.  Prairie,  86 
—73;  Rogers  v.  Moore,  86 — 85. 

Sec.  386.    In  all  other  actions  upon  failure  to  answer, 
judgment  by  default  and  inquiry. 

In  all  other  actions,  except  those  mentioned  in  the  pre- 
ceding section,  when  the  defendant  shall  fail  to  answer, 
and  upon  a  like  proof,  judgment  by  default  and  inquiry 
may  be  had  at  the  return  term,  and  inquiry  shall  be  exe- 
cuted at  the  next  succeeding  term.  If  the  taking  of  an 
intricate  or  long  account  be  necessary  to  execute  properly 
the  inquiry,  the  court,  at  the  return  term,  may  order  the 
account  to  be  taken  by  the  clerk  of  the  court,  or  some 
other  fit  person,  and  the  referee  shall  make  his  report  at 
the  next  succeeding  term;  in  all  other  cases,  the  inquiry 
shall  be  executed  by  a  jury,  unless  by  consent  the  court 
is  to  try  the  facts  as  well  as  the  law. 

Wynne  v.  Prairie,  86—73;  Rogers  v.  Moore,  86—85. 

Sec.  387.   Jud}?ment  against  infants  in  certain  cases  vali- 
dated.    1879,  c.  257.     1880,  c.  23. 

In  any  and  all  civil  actions,  and  special  proceedings 
pending  on  the  fourteenth  day  of  March,  one  thousand 
eight  hundred  and  seventy-nine,  or  theretofore  deter- 
mined, in  any  of  the  courts,  wherein  any  or  all  of  the 
defendants  were  infants,  idiots,  lunatics  or  persons  noii 
compos  mentis,  on  whom  there  was  no  personal  service  of 
the  summons,  the  proceedings,  actions,  decrees  and  judg- 
ments taken,  had  and  made  by  such  courts  in  such  civil 
actions  and  special  proceedings  shall  be  valid,  effectual 
and  binding  against  and  upon  such  infants,  idiots,  luna- 
tics and  persons  non  compos  mentis,  and  their  rights  and 
estates  in  like  manner,  as  if  they  had  been  personally 
served  with  a  summons  therein:  Provided,  that  this  sec- 
tion shall  not  have  the  effect,  nor  be  construed,  to  prevent 
any  of  the  proceedings,  actions,  judgments  or  decrees 
hereby  rendered  regular  and  confirmed,  from  being  im- 
peached and  set  aside  for  fraud. 

Gully  V.  Macy,  86—721. 

Sec.  388.    Judgment  on  frivolous  demurrer,   answer  or 
reply.    C.  C.  P.,  s.  218.     1870-'l,  c.  42. 

If  a  demurrer,  answer  or  reply  be  frivolous,  the  party 
prejudiced  thereby  may  apply  to  the  court,  or  to  the 


148 


CODE  OF  CIVIL  PEOCEDUEE.     [Chap.  10. 


judge  thereof,  for  judgment  thereon,  and  judgment  may- 
be given  accordingly. 

Eiwin  V.  Lowery,  64—331;  Clayton  v.  Jones,  68—497;  Moore  v.  E<irais- 
ton,  70—510;  Stith  v.  Lookabill,  71—35;  Baldwin  v.  York,  71 — 463;  Duun 
V.  Barnes,  73—373;  Mabiy  v.  Erwiu,  78—45;  Twilty  v.  Logan,  80—69. 

Sec.  389.    This  chapter  applicable  to  courts  of  justices 
of  the  peace. 

This  chapter  shall  apply,  as  near  as  may  be,  to  proceed- 
ings in  courts  of  justices  of  the  peace. 

Sec.  390.  In  actions  to  recover  real  property  or  the  posses- 
sion thereof.     1869-'70,  c.  193,  s.  4. 

In  all  actions  in  the  superior  court  for  the  recovery  of 
real  property,  or  for  the  jwssession  thereof,  upon  failure 
of  the  defendant  to  file  the  undertaking  required  by 
section  two  hundred  and  thirty-seven,  or  upon  failure  of 
sureties  to  justify  as  provided'ia  section  five  hundred  and 
sixty,  the  plaintiff  shall  have  judgment  for  the  rehef  de- 
manded in  the  complaint,  unless  the  defendant  is  excused 
from  giving  said  undertaking  before  answering. 

Jones  V.  Fortune,  69—333;  Lambert  v.  Kiunery,  74 — 348;  Justice  v.  Ed- 
dings,  75—581;  RoUins  v.  Henry,  77t-467. 


CHAPTER  TWO. 
ISSUES  AND  THE  MODE  OF  TEIAL. 


Section. 

391.  Issues  defined;  different  kinds 

of  issues. 
393.  Issue  of  law. 

393.  Issue  of  fact. 

394.  On  issues  of  both  l.iw  and  fact, 

issue  of  law  to  be  tried  first. 

395.  Wlien  and  by  wliom  issues  to  be 

made  up. 

396.  Issues  should  be  in  concise  and 

direct  terms. 

397.  Trial  defined. 


Section. 

398.  Issues,  how  tried. 

399.  Other  issues  to  be  tried  by  the 

court  or  judge. 

400.  Issues  of  fact,  when  to  be  tried. 

401.  Trial  may  be  postponed  by  clerk 

or  judge  before  the  trial  term 
on  nolice. 

402.  Trial    postponed    by  judge   in 

term  time,  when. 

403.  Older  of  business. 


Sec.  391.    Issues  defined;  different  kinds  of  issues.    C.  C. 
P.,  s.  219. 

Issues  arise  upon  the  pleadings,  when  a  material  fact 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  149 

or  conclusion  of  law  is  maintained  by  the  one  party  and 
controverted  by  the  other.     They  are  of  two  kinds: 

(1)  Of  law;  and 

(2)  Of  fact. 

Heilig  V.  Stoko^  G3— G13;  Kluttz  v.  McKensie,  65—103;  Clcgg  v.  Soap- 
stone  Co..  66—391;  PousUee  v.  ratlershiill,  67^53;  ArmticUl  v.  Brown, 
70—27;  Keener  v.  Finger,  70—35;  Lippard  v.  Roscman,  73 — 137;  Love  v. 
Dickson,  85—5;  Moore  v.  Hill,  85—318;  Alexander  v.  Robinson,  85—375. 

Sec.  392.    Issue  of  law.    C.  C.  P.,  s.  220. 

An  issue  of  law  arises  upon  a  demurrer  to  the  com- 
plaint, answer  or  I'eply,  or  to  some  part  thereof. 

Kluttz  V.  McKensie,  65—103;  Swepson  v.  Harve^',  69—387. 

Sec.  303.    Issue  of  fact.    C.  C.  P.,  s.  231. 

An  issue  of  fact  arises — 

(1)  Upon  a  material  allegation  in  the  complaint  contro- 
verted by  the  answer;  or, 

(2)  Upon  new  matter  in  the  answer,  controverted  by 
the  reply;  or, 

(3)  Upon  new  matter  in  the  reply,  except  an  issue  of 
law  is  joined  thereon. 

Neal  V.  Fesperman,  1  Jon.,  446;  Martin  v.  Milbourne,  66—331;  Albright 
V.  Mitchell,  70—445;  McBride  v.  Patterson,  73—478;  McRae  v.  Lawrence, 
75—389;  Jones  v.  Hemphill;  77 — 43;  Brandon  v.  Phelps;  77—44;  Cburch- 
hill  V.  Lee,  77 — 341;  Hudson  v.  AVetheriugton,  79 — 3;  Fickey  v.  Merrimon, 
79—585;  Hoff  v.  Grafton,  79—593;  McElwce  v.  Blackwell,  83—315;  Cedar_ 
Falls  V.  Wallace,  83—335. 

Sec.  394.  On  issues  of  both  law  and  fact,  issue  of  law  to  be 
tried  first.  C.  C.  P.,  s.  222. 

Issues  both  of  law  and  of  fact  may  arise  upon  different 
parts  of  the  pleadings  in  the  same  action.  In  such  cases 
the  issues  of  law  must  be  first  tried,  unless  the  court  oth- 
erwise direct. 

Sec.  395.  When  and  by  Avhom  issues  to  be  made  up. 

The  issues  arising  upon  the  pleadings,  material  to  be 
tried,  shall  be  made  up  by  the  attorneys  appearing  in  the 
action,  and  redaced  to  writing,  or  by  the  judge  jiresiding, 
before  or  during  the  trial. 

Kidder  V.  Mcllheny,  81—133;  Curtis  v.  Cash,  81—41;  Bryan  v.  Fisher, 
85 — 71;  Alexander  v.  Robinson,  85 — 375;  Rhea  v.  Dcaver,  85 — 337. 

Sec.  396.  Issues  should  be  in  concise  and  direct  terms. 
Rule  IV  of  Sup.  Ct.  June  Term,  1871. 

Issues  shall  be  framed  in  concise  and  direct  terms,  and 


>)0 


CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 


prolixity  and  confusion  must  be  avoided,  by  not  having 
too  many  issues. 

School  Committee  v.  Kesler,  66—323. 

Sec.  397.  Trial  defined.  C.  C.  P.,  s.  223. 

A  trial  is  the  judicial  examination  of  the  issues  between 
the  parties,  w^hether  they  be  issues  of  law  or  of  fact. 

Sec.  398.  Issues,  how  tried.  C.  C.  P.,  s.  224. 

An  issue  of  law  must  be  tried  by  the  judge  or  court, 
unless  it  be  referred.  An  issue  of  fact  must  be  tried  by 
a  jury,  unless  a  trial  by  jury  be  waived,  or  a  reference  be 
ordered. 

Erwia  v.  Lowery,  64 — 331 ;  Andrews  v.  Pritchett  66 — 387 ;  Swcpson  v. 
Harvey,  66—436;  Goldsborough  v.  Turner,  67—403;  Armfleld  v.  Brown, 
70—27;  Isler  v.  Murphy,  71—436;  Lippard  v.  Roseman,  72—427;  Womble 
V.  Fraps,  77—198;  Chasteen  v.  Martin,  81—51. 

Sec.  399.  Other  issues  to  be  tried  by  the  court  or  judge. 
C.  C.  P.,  s.  225. 

Every  other  issue  is  triable  by  the  court,  or  the  judge 
thereof  who,  however,  may  order  the  whole  issue,  or  any 
specific  question  of  fact  involved  therein,  to  be  tried  by  a 
jury,  or  may  refer  it.  And  when  a  compulsory  reference 
is  ordered  either  party  has  the  right  to  have  the  issues 
of  fact  tried  by  a  jury. 

Andrews  v.  Pritchett,  66—387;  Goldsborough  v.  Turner,  67—403;  Green 
V.  Castlebury,  70—20;  Keener  v.  Finger,  70—35;  Stith  v.  Looka- 
bill,  71—35. 

Sec.  400.  Issues  of  Fact,  when  to  be  tried.    C.  C.  P.,  s. 
226. 

Every  issue  of  fact  joined  on  the  pleadings,  and  inquiry 
of  damages  required  to  be  tried  by  a  jury,  shall  be  tried 
at  the  term  of  the  court  next  ensuing  such  joinder  of 
issue  or  order  for  inquiry:  Provided,  such  issue  shall  have 
been  joined  or  order  for  inquiry  made,  more  than  thirty 
days  before  such  term,  but  if  not,  they  shall  be  tried  at 
the  second  term  after  such  joinder  or  order. 

Sec.  401.  Trial  may  be  postponed  by  clerk  or  judge  be- 
fore the  trial  term  on  notice.    C.  C.  P.,  s.  227. 

Any  party  to  an  action  may  apply  to  the  court  in  which 
it  is  pending,  or  to  the  judge  therof,after  three  days'  no- 
tice in  writing  to  the  adverse  party,  to  have  the  trial  de- 
ferred to  a  term  subsequent  to  that  in  which  it  is  regu- 
larly triable;  such  apphcation  must  bo  made  thirty  days 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  151 

before  the  trial  term,  and  must  be  on  affidavit.  The 
court  or  judge  may  defer  the  trial  as  asked  for,  on  such 
terms  as  shall  be  just,  if  satisfied— 

(1)  That  the  apphcant  has  used  due  dihgence  to  have 
his  case  ready  for  trial;  and,  ■,     ,  • 

(2)  That  by  reason  of  circumstances  beyond  nis 
control,  which  he  shah  set  forth,  he  cannot  have 
a  fair  trial  at  the  regular  trial  term;  if  the  ap- 
phcation  is  made  by  reason  of  the  expected  absence  ot  a 
witness,  it  shall  state  the  name  and  residence  of  the  wit- 
ness, the  facts  expected  to  be  proved  by  him  and  the 
grounds  for  the  expectation  of  his  non-attendance,  and 
that  the  applicant  expects  to  procure  his  evidence  at  or 
before  some  named  subsequent  term.  The  apphcant 
shall  in  all  cases  pay  the  costs  of  the  apphcation. 

Sec.  402.  Trial  postponed  by  judge  in  term  time,  when. 
C.  C.  P.,  s.  238. 

The  judge  at  any  time  during  the  term  at  which  an 
action  is  triable,  may  postpone  the  trial  on  the  apphca- 
tion of  either  party,  and  on  such  terms  as  shall  be  ]ust, 

if  satisfied:  n    .       -.-v  i.    u 

(1)  That  the  apphcant  has  used  due  diligence  to  be 

ready  for  trial;  „  .    ,  .  ,      j_  ^,    .    ^  i 

(2)  That  he  cannot  have  a  fair  trial  at  that  term,  by 
reason  of  circumstances  stated,  and  if  the  ground  of  ap- 
phcation be  the  non-attendance  of  a  witness,  the  affidavit 
shall  contain  the  particulars  required  by  sub-division  two 
of  the  preceding  section.  Unless  the  apphcant  shall  also 
set  forth  in  his  affidavit  that  the  facts  upon  which  his 
apphcation  is  grounded  occurred  or  came  to  his  knowl- 
edge too  late  to  ahow  him  to  apply  as  prescribed  m  the 
preceding  section,  and  that  his  apphcation  is  made  as 
soon  as  it  reasonably  could  be  after  the  knowledge  of 
such  facts,  the  postponement  shall  not  be  granted,  except 
on  the  terms  of  the  payment  of  the  costs  in  the  action 
for  the  term. 

Moore  v.  Dickson,  74-423;  Isler  v.  Dewey.  79—1.  R.  C,  c.  31,  s.  57 
(13,  14). 

Sec.  403.  Order  of  business.    C.  C.  P.,  s.  329. 

The  criminal  calendar  shall  be  first  disposed  of,  unless, 
by  consent  of  counsel,  or  for  leasons  satisfactory  to  the 
judge,  particular  criminal  actions  may  be  deferred.  The 
issues  on  the  civil  calendar  shaU  be  disposed  of  in  the 
following  order,  unless,  for  the  convenience  of  parties  or 
the  dispatch  of  business,  the  court  shall  otherwise  direct: 


152  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

(1)  Issues  of  fact  to  be  tried  by  a  jury; 

(2)  Issues  of  fact  to  be  tried  by  the  court; 

(3)  Issues  of  law. 

Armfield  v.  Brown,  70-37;  Lippard  v.  Roscman,  72-437;  Thomas  v 
Myers,  87—31. 


CHAPTER  THREE. 
TEIAL  BY  JUEY. 


Sectioit, 

404.  Jury,  Low  (liawtL 

405.  Petit   jurors    sworu    in    civil 

cases;  defaulting  persons 
fined. 

406.  Names  of  jurors  to  be  called 

before  impaneled;  right  of 
challenge. 

407.  Scparaie  trials. 

408.  General    and    special    verdicts 

defined. 

409.  When  jury  may  render  either  a 

general  or  special  verdict,  and 
when  judge  may  direct  a  spe- 
cial finding. 


Section. 

410.  On  special  finding  with  general 

verdict,  former  to  control. 

411.  Jury  to  assess  defendant's  dam- 

ages in  certain  cases. 
413.  Entry  of  the  verdict;   motion 
for  new  trial  on  judge's  min- 
utes;  exceptions  how   taken, 
and  how  deemed  taken. 

413.  Judge  to  explain  law,  but   to 

express  no  opinion  on  facts. 

414.  Judge  to  put  his  instructions  in 
writing. 

415.  Counsel  to  put  their  prayers  for 
instruction  in  writing. 


K.  C,  c.  31,  s,  33.    1779, 


Sec.  404.  Jury,  how  drawn, 
c.  157,  s.  11. 

The  .judges  of  the  superior  court,  at  the  term  of  their 
courts,  shall  direct  the  names  of  all  persons  returned  as 
jurors  to  be  written  on  scrolls  of  paper  and  put  into  a  box 
or  hat  and  drawn  out  by  a  child  under  ten  years  of  age- 
whereof  the  first  eighteen  drawn,  shall  be  a  grand  jury 
for  the  court;  and  the  residue  shall  serve  as  petit  jurors 
for  the  court. 

State  V.  Davis,  3  Ired.,  153;  State  v.  Heaton,  77—505;  State  v.  Smith  80— 
410. 

Sec.  405.  Petit  jurors  sworn  in  civil  cases;  defaulting 
persons  fined.  B.  C,  c.  31,  s.  34.  1700,  c.  321  1822 
c.  1133,  s.  1.  ' 

The  clerk  shall,  at  the  beginning  of  the  court,  swear 
such  of  the  petit  jury  as  are  of  the  original  panel,  to  trv 
all  civil  cases;  and  if  there  should  not  be  enough  of  the 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  153 

orio-inal  panel,  the  talesmen  shall  be  sworn;  and  the  petit 
iurors  of  the  original  panel,  as  well  as  talesmen  sliall  be 
sworn  as  prescribed  in  the  chapter  entitled  -Oaths  : 
Provided,  that  nothing  herein  shall  be  construed  to  dis- 
allow the  usual  challenges  in  law  to  the  whole  .jury  so 
sworn  or  to  any  of  them;  and  if  by  reason  of  such  chal- 
leno-e  any  iuror  shall  be  withdrawn,  his  place  on  the 
iury  shall  be  supplied  by  any  of  the  original  venire  ox: 
from  the  bystanders  qualified  to  serve  as  jurors,  and  the 
iudge  or  other  presiding  officer  of  the  court  shall  decide 
all  questions  as  to  the  competency  of  jurors  in  both  civil 
and  criminal  actions.  Any  juror  failing  to  appear  shall 
be  fined  by  the  court  the  sum  of  forty  dollais,  and  notice 
shall  issue  to  such  juror  to  appear  at  the  next  term  ot 
the  court  and  show  cause  why  the  judgment  should  not 
be  made  absolute. 

Sec.  406.  Names  of  jurors  to  be  called  before  impaneled; 
right  of  cliallenge.  K.  C,  c.  31,  s.  35.  1796,  c.  452, 
s.  2.    1812,  c.  833. 

The  clerk,  before  a  jury  shall  be  impaneled  to  try  the 
issues  in  any  civil  suit,  shall  read  over  the  names  of  the 
jury  upon  the  panel  in  the  presence  and  hearing  ot  the 
parties  or  their  counsel;  and  the  parties,  or  their  counsel 
for  them,  may  challenge  peremptorily  four  jurors  upon 
the  said  panel,  without  showing  any  cause  theretor, 
which  shall  be  allowed  by  the  court. 

Ward  V.  Bell,  7  Jon.,  79;  Bryan  v.  HaiTisou,  76—360. 

Sec.  407.  Separate  trials.    C.  C.  P.,s.  230. 

A  separate  trial  between  a  plaintiff  and  any  of  the  sev- 
eral defendants  may  be  allowed  by  the  court,  whenever, 
in  its  opinion,  justice  will  thereby  be  promoted. 

Sec.  408.  General  and  special  verdicts  defined.    C.  C.  P., 
s.  232. 

A  general  verdict  is  that,  by  which  the  jury  pronounce 
generally  upon  all  or  any  of  the  issues,  either  m  favor  of 
the  plaintiff  or  defendant.  A  special  verdict  is  that  by 
which  the  jury  find  the  facts  only,  leaving  the  judgment 
to  the  court. 

School  Committee  v.  Kesler,  66—323. 

Sec.  409.  When  jury  may  render  either  a  general  or  spe- 
cial  verdict,  and  when  judge  may  direct  a  special  find- 
ing.   C.  C.  P.,  s.  233. 

In  an  action  for  the  recovery  of  specific  personal  prop- 


154  CODE  OF  CIVIL  PEOCEDUEE.     [Chap.  10. 

erty,  if  the  property  has  not  been  dehvered  to  the  plain- 
ift,  or  the  defendant  by  his  answer  claims  a  return 
thereof,  the  jury  shall  assess  the  value  of  the  property,  if 
then-  verdict  be  in  favor  of  the  plaintiff;  or  if  they  find 
in  favor  of  the  defendant,  and  that  he  is  entitled  to  a 
return  thereof,  they  may  at  the  same  time  assess  the 
damages,  if  any  are  claimed  in  the  complaint  or  answer, 
which  the  prevailing  party  has  sustained  bv  reason  of 
the  detention  or  taking  and  withholding  such  property. 
In  every  action  for  the  recovery  of  money  only,  or  spe- 
cific real  property,  the  jury,  in  their  discretion,  may  ren- 
der a  general  or  special  verdict.  In  all  other  cases,  the 
court  may  direct  the  jury  to  find  a  special  verdict  in 
writing,  upon  all  or  any  of  the  issues;  and  in  all  cases 
may  instract  them  if  they  render  a  general  verdict,  to 
find  upon  particular  questions  of  fact,  to  be  stated  in 
writing,  and  may  direct  a  written  finding  thereon.  The 
special  verdict  or  finding  shall  be  filed  with  the  clerk,  and 
entered  upon  the  minutes.. 

Outlaw  V.  Hurdle,  1  Jon.,  150;  Watson  v.  Davis,  7  Jon.,  178:  Henry 
V.  Rich,  64—379;  Couglikn  v.  White,  66—102;  School  Committee  v.  Kesler. 
66—323;  Holmesv.  Godwin,  69—467;  Armfieldv.  Brown,  70—27;  Williama 
v.  Thomas,  78—47;  Grant  v.  Bell,  87—34. 


Sec.  410.  On  special  finding  with  general  verdict,  former 
to  control.    C.  C.  P.,  s.  234, 

Where  a  special  finding  of  facts  shall  be  inconsistent 
with  the  general  verdict,  the  former  shall  control  the 
latter,  and  the  court  shall  give  judgment  accordingly. 

Sec.  411.  Jury  to  assess  defendant's  damages  in  certain 
cases.  C.  C.  P.,  s.  235. 

When  a  verdict  is  found  for  the  plaintiff  in  an  action 
for  the  recovery  of  money,  or  for  the  defendant  when 
a  set  off  for  the  recovery  of  money  is  established,  be- 
yond the  amount  of  the  plaintiflEs  claim  as  estabhshed, 
the  jury  must  also  assess  the  amount  of  the  recovery; 
they  may  also,  under  the  direction  of  the  court,  assess 
the  amount  of  the  recovery  when  the  court  gives  judg- 
ment for  the  plaintiff  on  the  answer.  If  asetoff,  estab- 
lished at  the  trial,  exceed  the  plaintiff's  demand  so  estab- 
hshed, judgment  for  the  defendant  must  be  given  for  the 
excess;  or  if  it  appear  that  the  defendant  is  entitled  to 
any  other  affirmative  rehef,  judgment  must  be  given  ac- 
cordingly. 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDUEE.  155 

Sec  412.  Entry  of  the  verdict;  motion  for  new  trial  on 
judge's  minutes;  exceptions  Uow  taken,  and  when 
deemed  taken.    C.  C.  P.,  s.  236. 

(1^  Upon  receiving  a  verdict,  the  clerk  shaU  make  an 
entry  in  his  minutes,  specifying  the  time  and  place  of  the 
tiial  the  names  of  the  jurors  and  witnesses,  the  verdict, 
and  either  the  iudgment  rendered  thereon,  or  an  order 
that  the  cause  be  Reserved  for  argument  or  further  con- 
sideratfon  If  a  different  direction  be  not  given  by  the 
court,  the  clerk  must  enter  judgment  m  conformity  with 

^%Titan  exception  be  taken  upon  the  trial,  it  must  be 
reduced  to  writing  at  the  time  with  so  much  of  the  evi- 
dence or  subject  matter  as  may  be  material  to  the  ex- 
Son  tJkei;  the  same  shall  be  entered  m  the  judge's 
SFnutes  and  be  tiled  with  the  clerk  as  a  part  of  the  case 

"Ts'f  I?  there  shall  be  error,  either  in  the  refusal  of  the 
judge  to  grant  a  prayer  for  instructions,  or  m  granting 
a  prayer,  or  in  his  instructions  generally,  the  same  shal 
be  dSmed  excepted  to  without  the  filing  of  any  formal 

''^^ifThTiudge  who  tries  the  cause  may,  in  his  discre- 
tion  entertain  a  motion,  to  be  made  on  his  mmutes  to 
set  aside  a  verdict  and  grant  a  new  trial  upon  exceptions, 
or  for  insufficient  evidence,  or  for  excessive  damages; 
but  such  motion  can  only  be  heard  at  the  same  term  at 
which  the  trial  is  had.  When  such  motion  is  heard  and 
decided  upon  the  minutes  of  the  judge,  and  an  appeal  is 
taken  from  the  decision,  a  case  or  exceptions  must  be 
settled  in  the  usual  form,  upon  which  the  argument  of 
the  appeal  must  be  had. 

Bledsoe  v.  Nixon.  69-81;  Holmes  v.  Godwin,  69-467;  ArmfleW  v. 
Brown  70-37;  Shelian  v.  Malone,  73-59;  Winburne  v.  Bryan,  73-47; 
England  Y.  Duckworth.  75-309;  Quincy  v.  Perkins.  76-395;  Heniy  v. 
Smtth,  78-37;  Tankard  y.  Tankard,  79-54;  Ballard  v.  Stanly.  79-637. 

Sec.  413.  Judge  to  explain  law,  hut  to  express  no  opin- 
ion  on  facts.  C.  C.  P.,  s.  237.  R.  C,  c.  31,  s.  130. 
1796,  c.  452,  s.  1.  . 

No  judge,  in  giving  a  charge  to  the  petit  jury,  either  in 
a  ci^l  orl  criminal  Iction,  shall  give  an  opmion  whether 
a  fact  is  fully  or  sufBciently  proven,  such  "patter  being 
the  true  office  and  province  of  the  jury;  but  he  shall 
state  in  a  plain  and  correct  manner  the  evidence  given  in 
the  case,  and  declare  and  explain  the  law  arising  thereon 

Orbison  y.   Morrison,   3  Mur.,   551;     Tate  v.   Greenlee,   3  Mur.,  556; 


156  CODE  OF  CIVIL  PEOCEDURE.     [Chap.  10. 

Sneed  v.  Crcath.  1  Hawks,  309;  Reel  v.  Reel,  2  Hawks.  63;  McNeill  t.  Mas- 
sey,  3  Hawks,  01 ;  State  v.  Morris,  3  Hawks,  388;  Reed  v.  Sbcnck,  2  Dev., 
415;  Stale  V.  Moses,  2  Dev.,  453;  State  v.  Lipscy,  3  Dev.,  485;  Stale  t! 
May. 4 Dev.,  328;  State  V.  Davis,  4  Dev.,  613;  Stale  v.  Haney,  2  D.  &  B., 
390;  Slate  V.  Johnson,  1  Ired.,  354:  State  v.  Angel,  7  Ired.,  27;  McKntire  v.' 
Durham,  7  Ired.,  151;  Bynumv.  Bynum,  11  Ired.,  632;  Overman  v.  Coble,  13 
Ired.,  l;Baily  V.  Pool,  13  Ired.,  404;  Mclvin  v.  Kasley,  1  Jon.,  386;  State  v. 
Cain.  3  Jon.,  201 ;  Wells  v.  Clements,  3  Jon.,  1G8;  State  v.  Whit,  5  Jon., 
234;  State  v.  Clara,  8  Jon.,  25;  Slate  v.  Norton,  1  Win.st.,  303;  Gailher  v.' 
Perebee,  1  Wiast.,  310;  State  v.  Dick,  3  Winst.,  45;  State  v.  Summey,  3 
Winst.,  108;  State  v.  Vinson,  03—335;  Glenn  v.  R.  R.  Co.,  63—510;  Slate 
V.  Dunlop,  05—288;  State  v.  Parker,  66—624;  Reiger  v.  Davis,  67—185; 
State  V.  Jones,  67—285,  Powell  v.  R.  R.  Co.,  68—395;  Witkowsky  v.  Was- 
son,  71—451:  Johnson  v.  Ray,  72-273;  Barlow  v.  Norfleet,  72—535;  Davis 
T.  Hill,  75—224;  State  v.  Dixon,  75—275;  State  v.  Locke.  77—481;  State  v. 
Dancy,  78—437;  State  v.  Malthews.  78—523:  Slale  v.  Browning,  78— 555; 
State  V.  Laxton,  78—564;  March  v.  Verble,  79—19;  Sever  v.  McLaughlin,' 
79—153;  Wiseman  v.  Penland,  79—197;  FicUey  v.  Merrimon.  79— 585;''siato 
T.  Sykes,  79—618;  State  v.  Austin,  79-024;  Wilson  v.  White,  80—280;'  State 
V.  Hardee,  83—619;  State  v.  Grady,  83—643;  State  v.  .Tonkins,  85—544-  State 
V.  Robertson,  86—628;  State  v.  Reynolds,  87—544;  State  v.  Jones,  87—547. 

Sec.  414.  Judge  to  put  Lis  instructions  in  writing.    C.  C 
P.,  s.  238. 

Every  judge,  at  the  request  of  any  party  to  an  action 
on  trial,  made  at  or  before  the  dose  of  the  evidence 
before  instructing  the  jury  on  the  law,  shall  put  his  in- 
structions in  writing,  and  read  them  to  tlie  jury;  he  shall 
then  sign  and  file  them  with  the  clerk  as  a  part  of  the 
record  of  the  action. 

Stout  v.  Woody,  63—37;  Powell  v.  R.  R.  Co.,  68—395;  Morgan  v.  Smith, 
77—37;  Brink  v.  Black,  77—59;  Williamson  v.  Canal  Co.,  78—156. 


Sec.  416.  Counsel  to  put  their  prayers  for  instruction  in 
writing.    C.  C.  P.,  s.  239. 

Counsel  praying  of  the  judge  instructions  to  the  jury, 
shall  put  their  request  in  writing  entitled  of  the  cause, 
and  sign  them;  otherwise  the  judge  may  disregard  them; 
they  shall  be  filed  with  the  clerk  as  a  part  of  the  record. 

Stout  v.  Woody,  63—37;  Brink  v.  Black,  77—59;  Williamson  v  Canal 
Co.,  78—156. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDUKE. 


157 


CHAPTER  FOUR. 
TEIAL  BT  THE  COUKT. 


Section. 

416.  Trial  by  .iuvy;  bow  waived. 

417.  On  trial  by  the  court,  juJgment, 

Low  givcu. 


Section. 

418.  Exception;  how  and  when  taken. 

419.  Prnccedings  upon  judgment  on 

issue  of  law. 


Sec.  416.  Trial  by  jury,  how  waived.    C.  C.  P.,  s.  240. 

Trial  by  iury  may  be  waived  by  tbe  several  parties  to 
an  issue  of  fact,  inactions  on  contract  and  with  the  as- 
sent of  the  court  in  other  actions  in  the  manner  foUow- 

(i)  By  failing  to  appear  at  the  trial; 

(2)  By  written  consent,  in  person  or  by  attorney,  hied 

with  the  clerk;  -,  ■     ,,         ■      t  „ 

(3)  By  oral  consent,  entered  m  the  minutes. 

Armficld  V.  Brown,  70-37;  Isler  v.  Murphy.  71-43G;  Benbow  v^  Rob- 
bins  73-423;  Strauss  v.  Beardsley,  79-59;  Chastain  v.  Coward,  /9-543; 
Chastccnv.  Martin,  81-51;  University  v.  Lassiter.  83-38;  Isler  v.  Koonce. 
83—55. 

Sec.  417.    On  trial  by  tUe  court,  judgment,  bow    to  be 
given.    C.  C.  P.,s.  241. 

Upon  the  trial  of  a  question  of  fact  by  the  court,  its 
decision  shall  be  given  in  writing,  ana  shaU  contain  a 
statement  of  th..  facts  found,  and  the  conclusions  of  law 
separately;  and  upon  a  trial  of  an  issue  of  law,  the  de- 
cision shall  be  made  in  the  same  manner  stating  the 
conclusions  of  law.  Such  <iecision  shall  be  fied  with  the 
clerk  during  the  court  at  which  the  trial  takes  place. 
Judgment  upon  the  decision  shall  be  entered  accord- 
in  ffly . 

J^icobs  V  Burgwin,  63-19G;  McAden  v.  Banister,  63-478;  Heilig  v. 
Stokes  63-613;  Clegg  v.  Soapstone  Co.,  66-391;  Fousbee  v,  Patter.hall, 
67-453;  Strauss  v.  Beardsley,  79-59;  Chastain  v.  Coward,  79-54o;  Meekms 
V.  Tatem,  79—546;  Burke  v.  Turner,  85—500. 

Sec.  418.  Exceptions,  bow  and  wbeu  taken.     C.  C.  P.,  s. 
242. 

(1)  For  the  purposes  of  an  appeal,  either  party  may 
except  to  a  decision  on  a  matter  of  law  arising  upon  such 
trial  within  ten  days  after  the  judgment,  m  the  same 


158  CODE  OF  CrVIL  PEOCEDUEE.    [Chap.  10. 

manner  aud  with  the  same  effect  as  upon  a  trial  by  jury: 
Provided,  that  where  the  decision  does  not  authorize  a 
final  judgment,  but  directs  further  proceedings  before  a 
referee  or  otherwise,  either  party  may  except  thereto, 
and  make  a  case  or  exception  as  above  provided  in  case 
of  an  appeal. 

(2)  And  either  party  desiring  a  review,  upon  the  evi- 
dence appearing  on  the  trial  of  the  questions  of  law,  may 
at  any  time  within  ten  days  after  the  judgment,  or  with- 
in such  time  as  may  be  prescribed  by  the  rules  of  the 
court,  make  a  case  or  exceptions  in  like  manner  as  upon 
a  trial  by  jury,  except  that  the  judge,  in  settling  the 
case  must  briefly  specify  the  facts  found  by  him,  and  his 
conclusions  of  law. 

Jacobs  V.  Buigwin,  63—196;  Foushee  v.  Pattershall,  67—453;  Green  v. 
Castleberry,  70—30;  Burke  v.  Turner,  85—500. 

Sec.  419.    Proceedings  upon  judgment  on  issue  of  law. 
C.  C.  P.,  s.  243. 

On  a  judgment  for  the  plaintiff  upon  an  issue  of  law, 
the  plaintiff  may  proceed  in  the  manner  prescribed  by 
the  first  two  sub-divisions  of  section  three  hundred  and 
eighty-five,  upon  failure  of  the  defendant  to  answer, 
where  the  summons  was  personally  served.  If  judgment 
be  for  the  defendant,  upon  an  issue  of  law,  and  if  taking 
of  an  account  or  the  proof  of  any  fact  be  necessary  to 
enable  the  court  to  complete  the  judgment,  a  reference 
or  assessment  by  jury  may  be  ordered,  as  provided  in 
section  three  hundred  and  eighty-six. 
Ransom  v.  McClees,  64—17. 


CHAPTEE  FnrE. 
TKIAL  BY  EEFEEEES. 


Section. 

430.  All  issues  referrable  by  consent. 

431.  When  reference  may  be  com- 

pulsorily  ordered. 


Section. 

433.  Mode  of  trial ;  effect  of  report; 

review. 
433.  Referees,  how  chosen ;  who  may 

be  referee;  report. 


Sec.  420.    All  issues  referrable  by  consent.    C.  C.  P.,  s. 
244. 

All,  or  any,  of  the  issues  in  the  action,  whether  of  fact 
ov  of  law,  or  both,  m&J  be  referred,  upon  the  written 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  159 

consent  of  the  parties,  except  in  actions  to  annul  a  mar- 
riage, or  for  divorce  and  separation. 

Hall  V  Craige,  65-51;  Kluttz  v.  McKenzie,  65-102;  Gudger  v.  Baird, 
66-438-  Johnston  v.  Haynes,  68-509;  Green  v.  Caslleberry,  70-20;  Arm- 
field  V  Brown  70-27;  Keener  v.  Finger,  70-35;  Lusk  v.  Clayton,  70— 
184-  Lippard  v.  Roseman,  73-437;  Armfield  v.  Brown,  73-81;  Price  v. 
Ecc'les  73-163;  Perry  v.  Tupper,  77-413;  Atkinson  v.  Whitehead,  77- 
418-  Grant  v.  Keese,  83-72;  Sloan  v.  McMahon,  85-296;  Neal  v.  Beck- 
nell',  85-299;  Barrett  v.  Henry,  85-321;  Syme  v.  Bunting,  86—175; 
White  V.  Utley,  86—415;  Chalk  v.  Bank,  87—200. 

Sec.  421.    "When  reference  may  be  compulsorily  ordered. 
C.  C.  P.,  s.  245. 

Where  the  parties  do  not  consent,  the  court  may,  upon 
the  application  of  either,  or  of  its  own  motion,  except 
where  the  investigation  will  require  the  decision  ot  ditti- 
cult  questions  of  law,  direct  a  reference  m  the  following 

(1)  Where  the  trial  of  an  issue  of  fact  shall  require  the 
examination  of  a  long  account  on  either  side;  in  which 
case  the  referee  may  be  directed  to  hear  and  decide  the 
whole  issue,  or  to  report  upon  any  specific  question  ot 
fact  involved  therein;  or,  .,-,-,■, 

(2)  Where  the  taking  of  an  account  shall  be  necessary 
for  the  information  of  the  court,  before  judgment,  or  for 
carrying  a  judgment  order  into  effect;  or, 

(3)  When  the  case  involves  a  complicated  question  of 
boundary,  or  one  which  requires  a  personal  view  of  the 

premises;  „    „     ,      ,,        .-i  i-u 

(4)  Where  a  question  of  fact  other  than  upon  the 
pleadings  shall  arise,  upon  motion  or  otherwise,  m  any 
stage  of  the  action.  But  the  compulsory  reference  under 
this  section  shall  not  deprive  either  party  of  his  right  to 
a  trial  of  the  issues  of  fact  arising  on  the  pleadings,  by  a 
jury. 

Douglas  V.  Caldwell,  64-372;  Heilig  v.  Foard,  64—710;  Hall  v.  Craig, 
65—51;  Kluttz  v.  McKenzie,  65—102;  Rowland  v.  Thompson,  65— 110; 
Riddickv.  Moore,  65—382;  Martin  v.  Wilbourne,  66—321;  Eubanks  v. 
Mitchell,  67—34;  Maxwell  v.  Maxwell,  67—383;  Johnston  v.  Haynes,  68— 
509;  Flack  V.  Dawson,  69— 43;  Green  v.  Green,  69—294;  Green  v.  Castle- 
berry,  70—30;  Armfield  v.  Brown,  70—37:  Armfield  v.  Brown,  73—81; 
Wall  v.  Covington,  76—150;  Atkinson  v.  Whitehead,  77-^18;  Gold  Co.  v. 
Ore  Co.,  79-48;  Bernheim  v.  Waring,  79—56;  Sutton  v.  Schonwald,  80— 
20:  R.  R-  Co.  v.  Morrison,  83—141;  University  v.  Lassiter,  83—38;  Isler  v. 
Koonce,  83—55;  Barrett  v.  Henry,  85—321;  Com'rs  v.  Magnin,  85—114; 
Sloan  V.  McMahon,  85—296;  McPetera  v.  Ray,  85—463;  Chalk  v.  B<mk. 
87—300;  Leakv.  Covington,  87—501. 


160  CODE  OF  CmL  PROCEDUEE.     [Chap.  10. 

Sec.  422.    Mode  oftrial;  effect  of  report;  review.  C  C.  P. 
s.  246.  ' 

The  trial  by  referees  shall  be  conducted  in  the  same 
manner  as  a  trial  by  the  court.  They  shall  have  the 
same  power  to  grant  adjouruments  and  to  allow  amend- 
ments to  any  pleadings  and  to  the  summons,  as  the  court 
upon  such  trial,  upon  the  same  terms  and  with  like  ef- 
fect. They  shall  have  the  same  power  to  preserve  order 
and  punish  all  violations  thereof  upon  such  trial,  and  to 
compel  the  attendance  of  witnesses  befoie  them  by  at- 
tachment and  to  punish  them  as  for  contempt  for  non- 
attendance  or  refusal  to  be  sworn  or  testify,  as  is  pos- 
sessed by  the  court.  They  must  state  the  facts  found 
and  the  conclusions  of  law  separately;  and  their  decision 
must  be  given,  and  may  be  excepted  to  and  reviewed  in 
like  manner,  and  with  like  effect  in  all  respects  as  in  cases 
of  appeal;  and  they  mav  in  like  manner  settle  a  case  or 
exceptions.  The  report  of  the  referees  upon  the  whole 
issue  shall  stand  as  the  decision  of  the  court,  and  judg- 
ment may  be  entered  thereon  upon  application  to  the 
judge.  When  the  reference  is  to  report  the  facts,  the  re- 
port shall  have  the  effect  of  a  special  verdict. 

Klultz  V.  McKenzie,  65—102;  Gudger  v.  Baird.  66-438;  Green  v.  Cas- 
tleberiy,  70—20;  Armfleld  v.  Brown,  70—27;  Wliitford  v.  Fny,  71—537; 
Earp  V.  Richardson,  75—84;  McGampbell  v.  McCling,  75— 393;'GrecD  v.' 
Castleborry,  77—164;  Cain  v.  Nicholson,  77—411;  Grceu  v.  Jones,  78—265; 
Buitv.  Suit,  78—372;  Gold  Co.  v.  Ore  Co.,  70—48;  Bushee  v.  Surles,  79— 
51;  Lawrence  v.  Hyman,  79—209;  Norment  v.  Brown,  79—363;  Morrison 
V.  Brtlier,  81—70;  LaFontaine  v.  Southern  Underwriters,  83—133;  Com'rs 
V.  Magnin.  85—114;  Miller  v.  Bryan,  86—167;  Banner  v.  McAdoo,  8&- 
870;  Long  V.  Logan,  86—535;  White  v.  Ulley,  86—415. 

Sec.  423.    Referees,  how  chosen;  who  may    be    referee; 
report.    C.  C.  P.,  s.  247. 

In  all  cases  of  reference  the  parties  as  to  whom  issues 
are  joined  in  the  action  (except  when  the  defendant  is  an 
infant  or  an  absentee)  may  agree  in  writing  upon  a  per- 
son or  persons,  not  exceeding  three,  and  a  reference  shall 
be  ordered  to  him  or  them,  and  to  no  other  person  or  per- 
sons. And  if  such  parties  do  not  agree,  the  court  shall 
appoint  one  or  more  referees,  not  more  than  three,  who 
shall  be  free  from  exception.  And  no  pei'son  shall  be  ap- 
pointed referee  to  whom  all  parties  in  the  action  shall  ob- 
ject. And  no  judge  or  justice  of  any  court  shall  sit  as 
referee  in  any  action  pending  in  the  court  of  which  he  is 
judge  or  justice,  and  not  already  referred,  unless  the  par- 
ties otherwise  stipulate.     The  referee  shall  make  and  de- 


Chap.  10.]    CODE  OF  CIVIL  PKOCEDURE.  161 

liver  a  report  within  such  time  as  may  be  ordered  by  the 
comt  The  report  of  the  referee  shall  be  made  to  the 
clerk  of  the  court  m  which  the  action  is  pending;  either 
party,  during  the  term  or  upon  ten  days  notice  to  the 
Adverse  party  out  of  term,  may  move  the  ]udge  to  re- 
view such  report,  and  set  aside,  modify  or  confirm  the 
same  in  whole  or  in  part,  and  no  ]uclgment  shall  be  en- 
tered on  any  reference  except  by  order  of  the  judge. 

Gud-crv  Baird.  CC-438;  Slate  v.  Peebles,  07-97;  Maxwell  v.  Maxwell 
67-383-  Green  V.  Green,  C9-294;  Green  v.  Castleberry,  70-20;  Armfleld 
V  Brown  70-27;  Scbelian  v.  Malone,  71-440;  Earp  v.  Richardson. 
75-84-  McCampbell  v.  McClung,  75-393;  Cain  v.  Nieholsm  77-411, 
Perry  Y  Tupper.  77-413;  Flcmming  v.  Roberts.  77^15;  Williams  v. 
Thomas,  78-47;  Busheo  v.  Surles,  79-51;  University  v.  Lassiter,  8d-38; 
Long  V.  Logan,  86—535. 


CHAPTER  SIX. 
MANNER  OF  ENTERING  JUDGMENT. 


Section. 

424.  Judgment  m.ay  be  for  or  against 

any  of  the  parties;  may  grant 
defendant  affirmative  relief; 
complaint  may  be  dismissed 
forneglect  to  prosecute  action; 
judgment  against  married  wo- 
man. 

425.  The  relief  to  be  awarded  to  the 

plaintiff. 

426.  Judgment  in  certain  cases  to  be 

a  conveyance  of  title. 
437.  Judgment  to  be  regarded  as  a 
deed  and  to  be  registered. 

428.  Copy  of  judgment  from  regis- 

ter's office  to  be  evidence. 

429.  Judgment  to    be  registered  as 

deeds. 


Section. 

430.  Rates  of  damages  where  dam- 

ages are  recoverable. 

431.  Judgment  in  action  for  recovery 

of  personal  property. 

432.  What  judge  to  approve  judg 

ments,  orders  and  decrees. 

433.  Jud.gments  lo  be  docketed  and 

indexed;  judgments  at  same 
term,  -when  held  to  be  dock- 
eted. 

434.  Judgment  roll. 

435.  Judgments,  when  and  how  to  be 

docketed;  secured  on  appeal. 

436.  Judgments    in    supreme    court 

may  be  docketed  in  superior 
court;  lien  of  judgment;  when 
transcript  may  be  obtained. 


Sec  424.  Judgment  may  be  for  or  agaiust  any  of  the  par- 
ties- may  grant  defendant  affirmative  relief;  complaint 
maybe  dismissed  for  neglect  to  prosecute  action;  judg- 
ment against  married  woman.    C.  C.  P.,  s.  248. 

(1)  Judgment  may  be  given  for  or  against  one  or  more 


162  CODE  OF  CIVIL  PEOCEDUEE.    [Chap.  10. 

of  several  plaintiffs,  and  for  or  against  one  or  more  of 
several  defendants;  and  it  may  determine  the  ultimate 
rights  of  the  parties  on  each  side,  as  between  themselves; 

(2)  And  it  may  grant  to  the  defendant  any  affirmative 
relief  to  which  he  may  be  entitled; 

(3)  In  an  action  against  several  defendants,  the  court 
may,  in  its  discretion,  render  judgment  against  one  or 
more  of  them,  leaving  the  action  to  proceed  against  the 
others,  whenever  a  several  judgment  may  be  proper; 

(4)  The  court  may  also  dismiss  the  complaint,  with 
costs  in  favor  of  one  or  more  defendants,  in  case  of  un- 
reasonable neglect  on  the  part  of  the  plaintiff  to  serve 
the  summons  on  other  defendants,  or  to  proceed  in  the 
cause  against  the  defendant  or  defendants  served.  In  an 
action  brought  by  or  against  a  married  woman,  judgment 
may  be  given  against  her  as  well  for  costs  as  for  damages, 
or  both,  for  such  costs  and  for  such  damages,  in  the  same 
manner  as  against  other  persons,  to  be  levied  and  collect- 
ed of  her  separate  estate,  and  not  otherwise. 

Harkey  v.  Houston,  65—137;  Burke  v.  Stokely,  65—569;  Ivi3y  v.  Gran- 
berry,  66—223;  Walsh  v.  Hall,  66—233;  Hutchinson  v.  Smith.  68—354; 
Lask  V.  Clayton,  70—184;  Clark  v.  "Williams,  70—679;  Sloan  v.  McDowell,' 
71—356;  Sloan  v.  McDowell,  75—29;  Hare  v.  Jernigan.  76—471;  Bradford 
V.  Coit,  77—72;  Lung  v.  Swindell,  77—176;  Harrell  v.  Peebles,  79—26; 
Weeks  v.  Weeks,  79—77;  Wiseman  v.  Penland,  79—197;  Beard  v.  Hall,' 
79—506;  Fickey  v.  Merrimon,  79—585;  Halyburtou  v.  Carson,  80—16- 
Hughes  V.  Boone,  81—204;  Ruffln  v.  Harrison,  81—208;  Melvin  'v.  Steph- 
ens, 82—283;  Hall  v.  Tounts,  87—285. 


Sec.  425.  The  relief  to  be  awarded  to  the  plaiutiff.  C.  C. 
P.,  s.  249. 

The  relief  granted  to  the  plaintiff,  if  there  be  no  answer, 
cannot  exceed  that  which  he  shall  have  demanded  in  his 
complaint;  but  in  any  other  case  the  court  may  grant 
him  any  relief  consistent  with  the  case  made  by  the  com- 
plaint and  embraced  within  the  issue. 

Foard  v.  Alex.ander,  64—69;  Powell  v.  Hill,  64—169;  Gudger  v.  Baird, 
66—438;  Gates  v.  Kendall,  67—241;  Haughton  v.  Newberry,  69 — 456;  Jones 
V.  Mial,  79—164;  Jones  v.  Mial,  82—252;  Knight  v.  Houghtalling.  85—17; 
Carpenter  v.  Huilsteller,  87—273. 

Sec.  426.  Judgment  in  certain  ca.ses  to  be  a  conveyance 
of  title.  R.  C,  c.  32,  s.  24.  1850,  c.  107,  s.  1.  1874- 
'5,  c.  17,  s.  1. 

In  any  action,  wherein  the  court  shall  declare  that  a 
party  is  entitled  to  the  possession  of  property,  real  or  per- 
sonal, the  legal  title  whereof  may  be  in  another  or  othei-s, 


CHAP.  10.]    CODE  OF  CIVIL  PEOCEDURE.  163 

parties  to  the  suit,  and  the  court  f  aU  order  a  conveyaiice 
of  such  le^al  title  to  him  so  declared  to  be  entitled,  or 
where  for  any  cause,  the  court  shall  order  thac  one  of 
Ihe  parties  holding  property  in  trust  shall  convey  the  egal 
t  tie  therein  to  be  held  in  trust  to  another  person,  al- 
thmighno^^  the   court,  after  declaring  the  nght 

and  ordering  the  conveyance,  shall  have  power  also  to 
be  usedlnfts   discretio^,  to   declare  in   the  order  ^hen 
made  or  in  any,  made  in  the  progress  of  .the  cause,  that 
Se  effect  thereof  shall  be  to  transfer  to  the  par  y  to 
whom  the  conveyance  is  directetl  to  be  made,  the  ie^ai 
S  e  of  the  said  property,  to  be  held  m  the  same  plight 
condition  and  es^tat?  as  though  the   conveyance   ordered 
was  in  fact  executed;    and  shall  bind  af  entitle  th^par 
ties  ordered  to  execute  or  to  take  benefit  of  the  coiivey 
ance  in  and  to  all  such  provisions,  conditions  and  cove- 
nant's as  may  be  adjudied  to  attend  the  conveyance  in 
the  same  manner  and  to  the  same  extent  as  the  convey 
ance  would  if  the  same  were  executed  according  to  the 
oider    Xd  any  party  taking  benefit  under  the  judgment 
may  have  the  sime  lidress  at  law  on  account  of  the  mat^ 
ter  adjudged  as  he  might  on  the  conveyance,  if  the  same 

'ItrWimil.  7^m  Bon.s  V.   He...   .3-3...  Bavis  v. 
Kogers,  84-^12. 

Sec.  437.    Judgment  to  be  regarded  as  a  deed  and  to  be 
registered.     K.C^c.   33,  s.    35.      1850,  c.   17,    s.    S. 

Everv'i'udgmentrin'which  the  transfer  of  title  shall  be 
sodSed  sSlbe  regarded  as  a  deed  of  conveyance, 
execu  ed  in  due  form'and  by  capable  persons,  notwith- 
standing the  want  of  capacity  in  any  person  ordered  to 
convey,  and  shall  be  registered  in  the  proper  county  un^ 
Sesame  rules  and  regulations  as  may  beprescubed 
?or  conveyances  of  similar  property  executed  by  the 
T^artv  and  all  laws  which  may  be  passed  for  extending 
?he  timefoi  re^stration  of  deeds  shall  be  deemed  to  in- 
clude^uch  judgments,  provided  the  conveyance,  if  ac- 
tually executed,  would  be  so  included. 

KoUins  V.  Henry,  78—342. 


164  CODE  OF  CIVIL  PEOCEDURE.     [Chap.  10. 

from  the  register's  books  shall  be  evidence  of  its  exist- 
ence and  of  the  matters  therein  contained,  as  fully  as  if 
the  same  were  proved  by  a  perfect  transcript  of  the  whole 
case. 

Rollins  V.  Henry,  78—342. 

Sec.  429.    Judgment  to  be  registered  as  deeds.    R.  C,  c. 
32,  s.  27.    1850,  c.  107,  s.  4.    1874-'5,  c.  17,  s.  4. 

The  party  desiring  registration  of  such  judgment  shall 
produce  to  the  register  a  copy  thereof,  certified  by  the 
clerk  of  the  court  in  which  it  is  enrolled,  under  the  seal 
of  the  court,  and  the  register  shall  record  both  the  judg- 
ment and  certificate. 

Rollins  V.  Henry,  78—343. 

Sec.  430.    Kates  of  damages  where  damages  are  recover- 
able.   C.  C.  P.,  s.  250. 

Whenever  damages  are  recoverable,  the  plaintiif  may 
claim  and  recover,  if  he  show  himself  entitled  thereto, 
any  rate  of  damages  which  he  might  have  heretofore  re- 
covered for  the  same  cause  of  action. 

Sec.  431.  Judgment  in  action  for  recovery  of  personal 
property.    C.  C.  P.,  s.  251. 

In  an  action  to  recover  the  possession  of  personal  prop- 
erty, judgment  for  the  plaintiff  may  be  for  the  possession, 
or  for  the  recovery  of  possession,  or  for  the  value  thereof, 
in  case  a  delivery  cannot  be  had,  and  the  damages  for  the 
detention.  If  the  property  has  been  delivered  to  the 
plaintiff,  and  the  defendant  claims  a  retuin  thereof, 
judgment  for  the  defendant  may  be  for  a  return  of  the 
property,  or  for  the  value  thereof  in  case  a  return  cannot 
be  had,  and  damages  for  taking  and  withholding  the 
same. 

Jarman  v.  Ward,  67—33;  Woody  v.  Jordan,  09-180;  Patapsco  Co.  v. 
Magee,  86—350. 

Sec.  432.  What  judge  to  approve  judgments,  orders  and 
decrees.  187«-'7,  c.  233,  s.  3.  1879,  c.  03.  1881. 
c.  51. 

In  all  cases  where  a  judgment,  decree  or  order  of  the 
superior  court  is  required  to  be  approved  by  a  judge,  it 
shall  be  approved  by  the  judge  having  jurisdiction' of 
receivers  and  injunctions. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  165 

Sec.  433.  Judgments  to  be  docketed  and  indexed;  judg- 
ments at  the  same  term,  when  held  to  he  docketed.  C. 
C.  P.,  s.  252.    Rule  XVIII. 

Every  iudgment  of  the  superior  court,  affecting  the 
right  to  real  property,  and  any  judgment  requu-mg  in 
whole  or  in  part  the  payment  of  money,  shall  be  entered 
by  the  clerk  of  said  superior  court  on  the  judgment 
docket  of  said  court.  The  entry  shall  contain  the  names 
of  the  parties,  and  the  relief  granted,  date  of  3udgment 
and  date  of  docketmg;  and  the  clerk  shall  keep  a  cross 
index  of  the  whole,  with  the  dates  and  numbers  thereof. 
All  judgments  rendered  in  any  county  by  the  superior 
fouit  tlfereof,  during  a  term  of  the  court,  and  docketed 
during  the  same  term,  or  within  ten  days  thereafte,^ 
shall  be  held  and  deemed  to  have  been  rendered  and 
docketed  on  the  first  day  of  said  term. 

Khyne  v.  McKee,  73—259. 

Sec.  434.    Judgment  roll.    C.  C.  P.,  s.  253. 

Unless  the  party  or  his  attorney  shall  furnish  a  ]udg- 
ment-roll,  the  clerk,  immediately  after  entering  the 
Sment,  shall  attach  together,  and  file  the  i^ollowmg 
papirs,  which  shall  constitute  the  judgment-roll: 

(n  In  case  the  complaint  be  not  answered  by  any  de- 
fendant, the  summons  and  complaint,  or  copies  thereof, 
nroof  of  service,  and  that  no  answer  has  been  received, 
the  report,  if  any  and  a  copy  of  the  judgment; 

(2)  In  all  other  cases,  the  summons,  pleadings,  or 
copies  thereof,  and  a  copy  of  the  judgment,  with  any 
ve?dict  or  report,  the  offer  of  the  defendant,  exceptions, 
case,  and  all  orders  and  papers  in  any  way  involving  the 
merits  and  necessarily  affecting  the  judgment. 

Sec.  435.    Judgments,  when  and  how  to  be  docketed;  se- 
cured on  appeal.    C.  C.  P.,  s.  254.  ,     ^c     4. 

Upon  filing  a  judgment-roll  upon  a  judgment  affect- 
ing the  title  Sf  real  property,  or  directing  in  whole  or  m 
part  the  payment  of  money,  it  shall  be  docketed  on  the 
ludgment  docket  of  the  superior  court  of  the  county 
whtre  the  judgment  roll  was  filed,  and  may  be  docketed 
on  the  judgment  docket  of  the  superior  court  of  any 
other  county  upon  the  filing  with  tlie  cerk  thereof  a 
transcript  of  the  original  docket,  and  shall  be  a  hen  on 
the  real  property  in  the  county  where  the  same  is  dock- 
eted, of  every  person  against  whom  any  such  judgment 
shall  be  rendered,  and  which  he  may  have  at  the  time  of 
the  docketing  thereof  in  the  county  in  which  such  real 


166  CODE  OF  CIVIL  PEOCEDTJEE.     [Chap.  lO. 

property  is  situated,  or  which  he  shall  acquire  at  any 
tune  thereafter  for  ten  years  from  the  date  of  the  rendi- 
tion  of  the  judgment.     But  the  time  duiing  which  the 
party  recovering  or  ownmg  such  judgment  yhall  be  or 
shall  have   been,    restrained   from    proceeding    thereon 
by  an  order  of  injunction,   or  other  order,   or   by  the 
operation   of    any    appeal,   or    by    a    statutory    prohi- 
bition, shall  not  constitute  any  part  of  the  ten  years 
aforesaid,  as  against  the  defendant  in  such  judgment  or 
the  party  obtaining  such  orders  or  making  such  anneal 
or  any  other  person  who  is  not  a  purchaser,  creditor  or 
mortgagee  in  good  faith.     But  whenever  an  appeal  from 
any  judgment  shall   be  pending,  and   the  undertaking 
requisite  to  stay  execution  on  such  judgment  shall  have 
been  given   and  the  appeal  perfected  as  provided   in  title 
thirteen  of  this  chapter,  the  court  in  which  such  jude- 
ment  was  recovered  may,  on  special  motion,  after  notice 
to  the  person  owning  the  judgment,  on  such   terms  as 
they  shall  see  fit,  dnect  an  entry  to  be  made  by  the  clerk 
on  the  docket  of  such  judgment,  that  the  same  is  se- 
cured on  appeal,  and  thereupon  it  shall  cease,  during  the 
pendency  ot  said  appeal,  to  be  a  lien  on  the  real  property 
of  the  judgment  debtor,  as  against  purchasers  and  mort- 
gagees in  good  faith. 

Harris  v.  Kicks,  63-653;  Rule  xviii.,  63-669;  Tliompson  v  Berry 
64-79;  Norwood  v.  Thorp,  64-683;  Perry  v.  Morris,  65-221-  McKeilhan 
V.Walker,  66-95;  Hutchinson  v.Symons,  67-156;  Hoppocky  Shober  69 
-153;  Bryan  v.  Hubbs,  69-423;  Dougherty  v.  Logan,  70-558;  Murchison 
V.  Williams,  71-135;  Halyburlou  v.  Greenlee,  72-316;  Rhyne  v  McKce 
73-259;  Isler  v.  Colgrove,  75-334;  Sharpe  v.  Williams,  76-87-  Manix  y' 
Ihi-ie,  76-299;  King  v.  Ponis,  77-25;  Wall  v.  Fairlev,  77-105'-  Green  v' 
Castleberry,  77-164;  Williams  v.  Green,  80-76;  Cannon  v  Parker  81- 
820;  Dixon  v.  Dixon,  81-323;  King  y.  Portis,  81-383;  Pasoiir  y  Rhyne 
83=^149;  Whitehead  y.  Latham,  83-232;  Lyon  y.  Russ,  84-588-  Morton 
V.  Rippy,  84—611;  Fox  y.  Cline,  8.5-173;  McDonald  v.  Dickson  85-248- 
Cotten  y.  McClenehan,  85-254;  Williams  y.  Williams,  85-383;'  Worslcy 
y.  Bryan,  86—343;  Rollins  y.  Henry,  86-714;  Wilson  y.  Patten'  87-318- 
Surratt  y.  Crawford,  87—372. 

Sec.  436.  Judgments  in  supreme  court  may  be  docketed 
in  superior  court;  lien  of  judgment ;  when  transcript 
may  be  obtained.     1881,  c.  75,  ss.  1,  4. 

It  shall  be  the  duty  of  the  clerk  of  the  supreme  court 
on  application  of  the  party  obtaining  judgment  in  said 
court,  directing  in  whole  or  in  part  the  payment  of 
money,  or  affecting  the  title  to  real  estate,  or  on  the  like 
apphcation  of  the  attorney  of  record  of  said  party  to 


CHAP.  10.]    CODE  OF  CIVIL  PEOCEDUEE.  167 

certify  under  his  hand  and  the  seal  of  said  conrt  a  tra^^ 
Rrrint  of  said  judgment,  setting  forth  the  title  ot  said 

3  the  clerk  of  the  superior  court  receiving  the  said 

Seted      And  when  so  docketed,  the  hen  of  said  ]udg- 

be  reckoned  as  is  provided  and  prescribed  in  the  precea 
ino- sections  for  judgments  of  the  superior  court,  so  far 
Lythfsame  ina^y  bf  appHcable     The  Pg^y  des;- 

been  rendered,  unless  the  supreme  court  shall  otherwise 
direct. 


TITLE  XL 

OF  THE  EXECUTION  OF  THE  JUDGMENT  IN  CIYIL 
ACTIONS. 

^^^P-    ll:   SESSTc".m.OKlMPHOVEME.TSBE.OKK 
T?'"^TrPTTTTON 

III   Proceedings  Supplementary  to  Execution. 
IV,'  Exemptions  from  Executions. 


CHAPTEE  ONE. 
THE  EXECUTION. 


Section. 

437.  Execution  within  three  years  of 
course. 


Section. 

438.  After  judgment  parly  may  pay 
the  same,  although  no  execu- 
tion has  heen  issued. 


168 


CODE  OF  CIVIL  PEOCEDURE.     [Chap.  10. 


Section. 

439.  Clerk  to  pny  the  money  to  tlie 

parly  eniillcd. 

440.  After  tliree  years,  to  be  issued 

only  by  leave  of  court;  leave, 
hoTv  obtained. 

441.  Judgments,  how  enforced. 

443.  The  different  kinds  of  execu- 

tion. 
443    To    Tvhat    counties    execution 
may     be     issued;    execution 
against  a  mariied  woman. 

444.  Executions  to  issue  from   the 

court  in  which  the  judgment 
was  rendered,  and  return  made 
to  the  same  court. 

445.  Returns    on    executions  to  be 

noted  on  judgment  docket, 
and  in  certain  cases  clerk  to 
send  copies. 

446.  Notice  of  judgment  nisi,  how 

given. 

447.  Execution  against  the  person, 

in  what  cases. 
44tJ.  Form  of  execution. 

449.  Executions  tested  as  of  preced- 

ing term,  and  returnable  to 
the  next  succeeding  term. 

450.  What  may  be  sold  under  exe- 

cution. 

451.  On  sale  of  equity  of  redemption, 

wliat  sheriff  to  set  forth  in 
deed. 

452.  Sale  of  trust  estates;  purchaser 

holds  the  same  discharged  of 
trust. 

453.  Execution  not  to  be  levied  on 

glowing  crops. 

454.  Sale  days  under  execution,  or 

by  order. 

455.  Sale  may  be   postponed  from 

day  to  day,  but  not  more  than 
three  days. 


Section. 

456.  Sale,  how  advertised. 

457.  Notice  of  sale  to  be  served  on 
defendant,  and  in  certain  cases 
on  the  governor. 

458.  All  private  acts  allowing  land 
to  be  sold  repealed. 

459.  Time  of  commencing  sale. 

460.  Sale  of  personal  properly  under 
execution,  when  and  where 
advertised. 

461.  Penalty  for  selling  contrary  to 
law. 

462.  No  sale  for  want  of  bidders, 
what  officer  shall  state;  pen- 
alty. 

463.  Forthcoming  bond  may  be 
taken  for  personal  property. 

464.  Surety  to  be  furnished  with  a 
list  of  the  property. 

465.  OiHcer,  how  to  proceed  on 
bond,  if  condition  broken. 

466.  Officer  allowed  pay  for  keeping 
horses,  &c. 

467.  Officer  to  make  out  his  account 
and  file  with  execution. 

408.  Purchaser  at  execution  sale 
may  recover  of  defendant  in 
the  execution,  when  the  title 
to  the  property  sold  is  defec- 
tive. 

469.  Defendant  dying  in  execution, 
debt  not  discharged;  new  exe- 
cution .against  property. 

470.  Clerks  to  issue  execution  within 
six  weeks;  penalty  one  hun- 
dred dollars  for  failure. 

471.  Officer  to  prepare  deeds  for 
property  sold. 

472.  Costs  on  cxecnitions  satisfied  in 
part  or  in  whole  to  be  paid  to 
clerk;  penalty  forty  dollars  for 
failure. 


Sec.  437.    Execution  within  three  years  of  course.    C.  C 
P.,  s.  255. 

The  party  in  whose  favor  juclf?nient  has  been  heretofore 
or  shall  hereafter  be  given,  and  in  case  of  his  death,  his  per- 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  169 

sonal  representatives  duly  appointed,  may  at  any  time 
within  three  years  after  the  entry  of  judgment,  proceed 
to  enforce  the  same,  by  execution,  as  provided  m  tms 
chapter. 

Williams  v.  Williams,  85—383;  Williams  v.  Mullis,  87—159. 

Sec.  438.  After  judgment  party  may  pay  the  same,  al- 
though no  execution  has  heen  issued.  K.  C,  c.  .31, 
s.   127.  1823,  c.  1212,  s.  1. 

The  party  against  whom  any  judgment  for  the  pay- 
ment of  money  may  be  rendered,  by  any  court  of  record, 
may  pay  the  whole,  or  any  part  thereof,  to  the  clerk  ot 
the  court  in  which  the  same  may  have  been  rendered,  at 
any  time  thereafter,  although  no  execution  may  have  is- 
sued on  such  judgment;  and  such  payment  of  money 
shall  be  good  and  available  to  the  party  making  the  same 
and  the  clerk  shall  enter  the  payment  on  the  judgment 
docket  of  the  court,  and  immediately  forward  a  certiti- 
cate  thereof  to  the  clerk  of  the  superior  court  of  each 
county,  to  whom  a  transcript  of  said  judgment  has 
been  sent,  and  the  clerk  of  such  superior  court  shall 
enter  the  same  on  the  judgment  docket  of  such  court, 
and  file  the  original  with  the  judgment  roll  m  the 
action. 

Purvis  V.  Jackson,  G9^74;  Bynum  v.  Barefoot,  75—576. 

Sec.  430.  Clerk  to  pay  the  money  to  the  party  entitled. 
K.  C,  C.31,  s.  128.    1823,  c.  1212,  s.  2. 

The  clerk,  to  whom  money  shall  be  paid  as  aforesaid, 
shall  pay  the  same  to  the  party  entitled  to  receive  it,  un- 
der the  same  rules  and  penalties  as  if  the  money  had 
been  paid  into  his  ofBce  by  virtue  of  an  execution. 

Blackburn  v.  Brooks,  65 — 413. 

Sec.  440.  After  three  years,  to  he  issued  only  hy  leave  of 
court ;  leave,  how  ohtained.    C.  C.  P.,  s.  256. 

A.f ter  the  lapse  of  three  years  from  the  entiy  of  judg- 
ment, an  execution  can  be  issued  only  by  leave  of  the 
court,  upon  motion,  with  personal  notice  to  the  adverse 
party,  unless  he  be  absent  or  non-resident,  or  cannot  be 
found  to  make  such  service,  in  which  case  such  service 
may  be  made  by  publication,  or  in  such  other  manner  as 
the  court  shall  direct.  Such  leave  shall  not  be  given 
unless  it  be  established  by  the  oath  of  the  party,  or  by 
other  satisfactory  proof,  that  the  judgment,  or  some  part 
thereof,  remains  unsatisfied  and  due.  But  the  leave  shall 
not  be  necessary  when  execution  has  been  issued  on  the 


170  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

judgment  within  the  three  years  next  preceding  the  suing 
for  execution,  and leturn  tliereof  unsatisfied  in  whole  or 
in  part. 

McAden  v.  Banister,  63—478;  McDowell  v.  Asbbury,  GO— 444;  Pbillips 
V.  Trezevaut,  70—176;  Aycock  v.  Harrison,  71—433;  Isler  v.  Murpliy, 
71—436;  Baldwin  v.  York,  71—463;  Blum  v.  Ellis,  73—293;  Moore  v 
R.  R.  Co.,  74—538:  McKctban  v.  McNeill,  74—663;  Dawson  v.  Harts- 
field,  79—334;  Witbers  v.  Slinson,  79—841;  Bell  v.  Cunningliam,  81—83; 
Broyles  v.  Young,  81—310;  Lalbam  v.  Dixon,  83—55;  Lee  v.  Eure,  83— 
438;  Sanderson  v.  Daily,  83—67;  Rusb  v.  Steamboat  Co.,  84—703;  Mc- 
Donald V.  Dickson,  85—248;  Williams  v.  Williams,  85—383;  Williams 
V.  Mullis,  87—159;  Surratt  v.  Crawford,  87—372;  Jobnston  v.  Jones,  87 
—393;  Daniel  v.  Laugblin,  87—433. 

Sec.  441.  Judgments,  how  enforced.    C.  C.  P.,  s.  257. 

Where  a  judgment  requires  the  payment  of  money,  or 
the  delivery  of  real  or  personal  property,  the  same  "may 
be  enforced  in  those  respects  by  execution,  as  provided 
in  this  title.  Where  it  requires  the  performance  of  any 
other  act,  a  certified  copy  of  the  judgment  may  be 
served  upon  the  party  against  whom  it  is  given,  or  upon 
the  person  or  office  who  is  required  thereby  or  by  law  to 
obey  the  same,  and  his  obedience  thereto  enforced.  If 
he  refuse,  he  may  be  punished  by  the  court  as  for  con- 
tempt. 

Sec.  442.    The  different  kinds  of  execution.     C.  C.  P.,  s. 
258, 

There  shall  be  three  kinds  of  execution:  one  against 
the  property  of  the  judgment  debtor,  another  against  his 
person,  and  the  tliird  for  the  delivery  of  the  possession  of 
real  or  personal  property,  or  such  delivery  witli  dam- 
ages for  withholding  the  same.  They  shall  be  deemed 
the  process  of  the  court,  and  shall  be  subscribed  by 
the  clerk,  and  ■w^hen  to  run  out  of  his  county,  must 
be  sealed  with  the  seal  of  his  court. 

Fnlcy  V.  Smitb,  4  Dev.,  95;  Bryau  v.  Hubbs,  69—423;  Houston  v. 
Walsb,  79—35. 

Sec.  443.  To  what  counties  execution  may  he  issued ;  exe- 
cution against  a  married  woman.    C.  C  P.,  s.  25J). 

When  the  execution  is  against  the  property  of  the 
judgment  debtor,  it  may  be  issued  to  the  sheriff  of  any 
county  where  the  judgment  is  docketed.  When  it  re- 
quires the  delivery  of  real  or  personal  property,  it  must 
be  issued  to  the  sheriff  of  the  county  where  tlie  prop- 
erty, or  some  part  thereof,  is  situated.  Executions  may 
be  issued  at  the  same  time  to  different  counties. 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDUEE.  171 

Real  property  adjudged  to  be  sold  must  be  sold  in  the 
county  where  it  lies,  by  the  sheriff  of  the  county,  or  by 
a  referee  appointed  by  the  court  for  that  purpose;  and 
thereupon  the  sheriff  or  referee  must  execute  a  convey- 
ance to  the  purchaser,  which  conveyance  shall  be  effec- 
tual to  pass  the  rights  and  interests  of  the  parties 
adjudged  to  be  sold.  . 

An  execution  mav  issue  against  a  married  woman, 
and  it  shall  direct  the  levy  and  collection  of  the  amount 
of  the  judgment  against  her  from  her  separate  property, 
and  not  otherwise. 

EoUins  V.  Henry,  78—342;  Mebane  v.  Mebane,  80—34;  Kidder  v.  Mc- 
Ilhenny,  81—133;  Pasour  v.  Rhyne,  83—149. 

Sec.  444.  Executions  to  issue  from  tlie  court  iu  whicli 
tlie  jitdgment  was  rendered,  and  return  made  to  the 
same  court.  1871-'^,  c.  74,  s.  1.  1881,  c.  76. 
The  executions  provided  in  this  chapter,  and  other 
process  for  the  enforcement  of  such  judgments,  shall 
issue  only  from  the  court  in  which  the  judgment  for  the 
enforcement  of  such  execution,  other  final  process,  or 
any  of  them  may  issue,  was  rendered;  and  such  execu- 
tions or  other  final  process  against  tlie  property  of  the 
defendant  or  defendants,  or  any  one  or  more  of  them, 
may  be  issued  under  the  seal  of  the  court  to  any  county 
in  which  such  last  mentioned  judgment  maybe  docketed; 
and  such  executions  or  other  final  process  may  issue  to 
two  or  more  counties  at  the  same  time  as  now  provided 
bv  law,  and  executions  against  the  person  or  persons  of 
tlie  defendant  or  defendants,  or  any  of  them,  may  issue 
to  any  one,  or  more  counties;  and  the  returns  of  all  such 
executions  or  other  final  process  shall  be  made  to  the 
court  of  the  county  from  which  the  same  issued. 

Sec.  445.  Keturns  on  executions  to  be  noted  on  .judg- 
ment docket,  and  in  certain  cases  clerlt  to  send  copies. 
1871-'3,  c.  74,  s.  2.     1881,  c.  75. 

When  any  such  execution  shall  be  returned  as  herein 
provided,  the  return  of  the  sheriff'  or  other  officer  shall 
be  noted  by  the  clerk  on  the  judgment  docket;  and  when 
the  same  shall  be  returned  satisfied,  or  partially  satisfied, 
it  shall  be  the  duty  of  the  clerk  of  the  court  to  which  the 
same  is  letnrned  to  send  a  copy  of  such  last  mentioned 
return,  under  his  hand,  to  the  clerk  of  the  superior  court 
of  each  county  in  which  such  judgment  is  docketed, 
whose  duty  it  shall  be  to  note  such  copy  in  his  judgment 
docket,  opposite  said  judgment,  and  to  file  said  copy  with 


112  CODE  OF  CrVIL  PROCEDURE.     [Chap.  10. 

the  transcript  of  the  docket  of  said  judgment  in  his  office. 
Any  clerk  failing  to  send  a  copy  of  the  payments  on  said 
execution  or  judgment  to  the  clerks  of  the  superior  court 
of  the  counties  wherein  a  transcript  of  the  judgment  has 
been  docketed,  and  any  clerk  failing  to  note  said  pay- 
ment on  the  judgment  docket  of  his  court,  shall,  on  mo- 
tion, be  fined  one  hundred  dollars  nisi  for  said  failure, 
and  said  conditional  judgment  shall  be  made  absolute 
upon  notice  to  show  cause  at  the  succeeding  term  of  the 
superior  court  of  his  county. 

Sec.  446.    Notice  of  judgment  nisi,  how  giveu.    1871-'2, 
c.  74,  s.  4. 

In  all  cases  where  any  sheriff,  or  other  officer,  shall  be 
amerced  for  failure  to  make  due  return  of  any  execu- 
tion, or  other  process  placed  in  his  hands,  or  for  any  de- 
fault whatsoever  in  office,  and  judgment  nisi  or  other- 
wise, for  the  penalty  of  forfeiture  in  such  case  made 
and  provided,  shall  be  entered,  it  shall  be  sufficient  to 
give  such  sheriff  notice,  according  to  law,  under  the  hand 
of  the  clerk  and  seal  of  the  court,  where  such  judgment 
may  be  entered,  of  a  motion  for  a  judgment  absolute,  or 
for  execution  as  the  case  may  be,  and  no  other  notice, 
summons  or  suit  shall  be  necessary  to  enforce  the  same; 
and  such  proceedings  shall  be  deemed  and  held  in  aid  of 
a  suit  or  other  proceedings  already  instituted  in  court. 

Franks  v.  Sutton,  8&— 78. 

Sec.  447.    Execution  against  the  person,  in  what  cases. 
C.  C.  P.,  s.  260. 

If  the  action  be  one  in  which  the  defendant  might  have 
been  arrested,  an  execution  against  the  person  of  the 
judgment  debtor  may  be  issued  to  any  county  within  the 
state,  after  the  return  of  an  execution  against  his  prop- 
erty unsatisfied  in  whole  or  in  part.  But  no  execution 
shall  issue  against  the  person  of  a  judgment  debtor,  un- 
less an  order  of  arrest  has  been  served,  as  provided  in 
title  nine,  sub-chapter  one  of  this  chapter,  or  unless  the 
complaint  contains  a  statement  of  facts  showing  one  or 
more  of  the  causes  of  arrest  required  by  section  two  hun- 
dred and  ninety-one. 

McAden  v.  Banister,  63—478;  Claflin  v.  Underwood,  75—485;  Houston 
V.  Walsh,  79—35;  Peebles  v.  Foote,  83— lOa. 

Sec.  448.  Form  of  execution.    C.  C.  P.,  s.  261.  1868-'9,  c. 
148,  s.  1.      1870-'l,  c.  42,  s.  7. 

The  execution  must  be  directed  to  the  sheriff,  or  cor- 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  173 

oner  when  the  sheriff  is  a  party  or  interested,  subscribed 
by  the  clerk  of  the  court,  and  must  intelhgibly  refer  to 
the  judgment,  stating  the  county  where  the  judgment- 
roll  of  transcript  is  filed,  the  names  of  the  parties,  the 
amount  of  the  judgment,  if  it  be  for  money,  and  the 
amount  actually  due  thereon,  and  the  time  of  docketing 
in  the  county  to  which  the  execution  is  issued,  and 
shall  require  the  officer  substantially  as  follows: 

Peebles  v.  Pate,  86 — 437;  Barnes  v.  Hyatt,  87—315. 


AGAINST   PROPERTY — NO  LIEN  ON  PERSONAL  PROPERTY   UN- 
TIL LEVY. 

(1)  If  it  be  against  the  property  of  the  judgment  debtor, 
it  shall  require  the  officer  to  satisfy  the  judgment  out  of 
the  personal  property  of  such  debtor ;  and  if  sufficient 
personal  property  cannot  be  found,  out  of  the  real  prop- 
erty belonging  to  him  on  the  day  when  the  judgtr.ent 
was  docketed  in  the  county,  or  at  any  time  thereafter;  but 
no  execution  against  the  property  of  a  judgment  debtor 
shall  be  a  lien  on  the  personal  property  of  such  debtor,  as 
against  any  bona  fide  purchaser  from  him  for  value, 
or  as  against  any  other  execution,  except  from  the  levy 
thereof. 

Harris  v.  Ricks,  63—653;  Phillips  v.  Trezevant,  70—176;  Grant  T. 
Hughes,  82—216;  Peebles  v.  Pate,  86—437;  Barnes  v.  Hyatt,  87—315. 


AGAINST  PROPERTY   IN  HANDS   OP  PERSONAL    REPRESENTA- 
TIVE. 

(2)  If  it  be  against  real  or  personal  property  in  the 
hands  of  personal  representatives,  heirs,  devisees,  lega- 
tees, tenants  of  real  property  or  trustees,  it  shall  require 
the  officer  to  satisfy  the  judgment  out  of  such  property. 

Grant  v.  Ncwsom,  81—36;  Kidder  v.  Mcllhenny,  81—123. 


AGAINST  THE   PERSON. 

(3^  If  it  be  against  the  person  of  the  judgment  debtor, 
it  shall  require  the  officer  to  arrest  such  debtor,  and  com- 
mit him  to  the  jail  of  the  county  until  he  shall  pay  the 
judgment  or  be  discharged  according  to  law. 


174  CODE  OF  CIVIL  PEOCEDUEE.     [Chap.  10. 

FOR  DELIVERY  OF  SPECIFIC  PROPERTY. 

(t)  If  it  be  for  the  delivery  of  the  possession  of  real  or 
personal  property,  it  shall  require  the  officer  to  deliver 
the  possession  of  the  same,  particularly  describing  it,  to 
the  the  party  entitled  thereto,  and  may  at  the  same  time 
require  the  officer  to  satisfy  any  costs,  damages,  rents, 
or  profits  recovered  by  the  same  judgment,  out  of  the 
personal  property  of  the  party  against  whom  it  was  ren- 
dered, and  the  value  of  the  property  for  which  the  judg- 
ment was  recovered,  to  be  specified  therein,  if  a  dehvery 
thereof  cannot  be  had;  and  if  sufficient  personal  prop- 
erty cannot  be  found,  then  out  of  the  real  property 
belonging  to  him  on  the  day  when  the  judgment  was 
docketed,  or  at  any  time  thereafter,  and  shall  in  that 
respect  be  deemed  an  execution  against  property. 

Johnson  v.  Nevill.  65— 677;  Giier  v.  Rhyne,  69— 346:  WWssenhunt  v. 
Joues,  78—301 ;  Clark  v.  Wagner,  78—367. 

Sec.  449.  Executions  tested  as  of  preceding  term,  and 
returnable  to  the  next  succedinjj  term.  1870-'l  c. 
42,  s.  7;  1873-'4,  c.  7,  s.  668. 

All  executions  issued  under  this  chapter  shall  be  tested 
as  of  the  term  next  before  the  day  on  which  thev  were 
issued,  and  shall  be  returable  to  the  term  of  the"  court 
next  after  that  from  which  they  bear  teste,  and  no  exe- 
cution against  property  shall  issue  until  the  end  of  the 
term  dating  which  the  judgment  was  rendered. 

Person  v.  Newsona,  87 — 143. 

Sec.  460.  What  maybe  sold  under  execution.  R.  C,  c.  46, 
ss.  1,  3,  4,  5.  6  Geo.  II..  c.  7,  s.  4.  1777,  c.  116,  s.  29. 
1813,  c.  830,  ss.  1,  2.    1832,  c.  1172. 

The  property,  estate  and  effects  of  the  judgment 
debtor,  not  exempted  from  sale  under  the  constitution 
and  laws  of  this  state,  may  be  levied  on  and  sold  under 
execution  as  hereinafter  prescribed: 

(1)  The  goods,  chattels,  houses,  lands,  tenements  and 
other  hereditaments,  and  real  estate  belonging  to  him. 

Perkins  V.  Bullingcr,  1  Hay.,  443  (368);  Allemong  v.  Allison,  1  Hawks, 
335;  Gilkev  v.  Dickerson,  3  Hawks,  341;  Brasfield  v.  Wliitakcr.  4 
Ha,wkR,  309;  YarborougU  v.  Bank,  2  Dev.,  23;  Palmer  v.  Clarke,  2  Dcv., 
354;  Arringtnn  v.  Sledge,  2  Dcv.,  3;  Iloke  v.  Henderson,  8  Dev..  12'; 
Hardy  v.  .Jasper,  3  Dev.,  1,58;  Kicks  v.  Blount,  4  Dev.,  128:  Wood  v.  Har- 
rison, 1  D.  &  B.,  365;  Popplcstnn  v.  Skinner,  4  D.  &  B.,  156;  Jones  v.  Jud. 
kins,  4  D.&B.,  454;  Pinleyv.  Smith.  3  Ired.,  225;  Spencer  v.  Hawkins,  4 Ired. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  175 

Eq.,  288;Mangum  v.  Hamlet,  Sired.,  44;"Williamson  v.  James,  10  Ired.,  162; 
Brazier  V.  Thomas,  Busb.,  28;  Campbell  v.  Smith.  1  Jon.  Eq.,  156;  Jim- 
merson  V  Duncan,  3  Jon.,  537;  Williams  v.  Council,  4  Jon.,  206;  Morris 
V.  Rippy,  4  Jon.,  533;  Nixon  v.  Harrell,  5  Jon.,  76;  Woodley  v.  Gilliam, 
67—237;'  Tliompson  v.  Peebles,  85—418;  Worsley  v.  Bryan,  86-343- 
Peebles  v.  Pate,  86— 437:  Beckwith  v.  Minmg  Co.,  87—155;  Shcppard  v. 
Bland,  87—163. 

(2)  All  leasehold  estates  of  three  years'  duration  or 
more,  owned  by  him;  ■,     ■  ,  .     c 

(3)  The  equity  of  redemption,  and  legal  right  ot  re- 
demption, in  lands,  tenements,  rents  or  other  heredita- 
ments, pledged  or  mortgaged  by  him; 

Camp  V.  Coxe,  ID.  &  B.,  53;  Davis  v.  Evans,  5  Ired.,  535;  McRary  v. 
Fries,  4  Jon.  Eq.,  233;  McKeithan  v.  Walker,  66—95;  Hutchison  v. 
Symons,  67—156;  Hinsdale  v.  Thornton,  75— 381 ;  Joyner  v.  Farmer,  78— 
196;  Rollins  v.  Henry,  86—714. 

(4)  Any  lands,  tenements,  rents  and  hereditaments,  or 
any  goods  and  chattels,  of  which  any  person  shall  be 
seized  or  possessed  in  trust  for  him. 

Brown  v.  Graves,  4  Hawks,  343;  Harrison  v.  Battle,  1  Dev.  Eq.,  537 
Mordecai  v.  Parker,  8  Dev.,  425;  Gillis  v.  McKay,  4  Dev.,  173;  Cloud  v 
Martin,  1  D.  &  B.,  397;  Burgin  v.  Burgin,  1  Ired.,  160;  Gowing  v 
Rich,  1  Ired..  553;  Davis  v.  Garrett,  3  Ired,,  459;  Frost  v.  Reynolds,  4Ired, 
Eq.,  494;  Barham  v.  Massey,  5  Ired.,  193;  McGce  v.  Hussey,  5  Ired.,  255 
Battle  V.  Petway,  5.  Ired.,  576;  Williams  v.  Williams,  6  Ired.  Eq.,  20;  Me 
Leran  v.McKethan,7Ired.  Eq.,  70;Page  v.  Goodman,  Sired.  Eq.,  16;Bad- 
ham  V.  Cox,  11  Ired.,  456;  Jennings  v.  Hardin,  Busb.  Eq.,  275;  Nelson  v, 
Hughes,  2  Jon.  Eq.,  33;  McKeithan  v.  Walker,  66—95;  Hutchinson  v 
Symons,  67—156;  Hinsdale  v.  Thornton,  74^-167;  Tally  v.  Reed,  74—468; 
Hinsdale  v.  Thornton,  75—381. 

Sec.  451.  On  sale  of  equity  of  redemption,  what  sheriff  to 
set  forth  in  deed.  K.  C,  c.  45,  s.  5.  1812,  c.  830,  s.  2. 
1822,  c.  1172. 

The  sheriff  sehing  the  equity  of  redemption  and  legal 
right  of  redemption,  as  set  forth  in  the  preceding  section, 
sub-division  three,  shall  set  forth  in  the  deed  to  the  pur- 
chaser thereof  that  the  said  estates  were  under  mortgage 
at  the  time  of  judgment,  or  levy  in  the  case  of  personal 
property,  and  sale. 

Bruce  v.  Faucett,  4  Jon.,  391. 

Sec.  452.  Sale  of  trust  estates;  purchaser  holds  the  same 
discharged  of  trust.    K.  C,  c.  45,  s.  4.    1812,  c.  830, 

8.     1. 

Upon  the  sale  under  execution  of  the  estates  mentioned 
in  section  four  hundred  and  fifty,  sub-division  four,  the 


L 


176  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

sheriff  shaU  execute  a  deed  to  the  purchaser,  and  the 
purchaser  thereof  shall  hold  and  enjoy  the  same  freed 
and  discharged  from  all  encumbrances  of  the  person  so 
seized,  or  possessed  in  trust  as  aforesaid. 

Sec.  453.  Execution  not  to  be  levied  on  growing  crops. 
K.  C,  c.  45,  s.  11.  1844,  c.  35. 

No  execution  shall  be  levied  on  growing  crops  until  the 
same  are  matured. 

Smith  V.  Tritt.  1  D.  &  B.,  241;  State  v.  Poor,  4D.  &B.,  384;  Shannon  v. 
Jones,  12  lied.,  206. 

Sec.  454.  Sale  days  under  execution,  or  by  order.  1876-'7, 
c.  216,  ss.  2,  3.  1883,  c.  94,  ss.  1,  2. 

All  real  property  sold  under  execution,  or  by  order  of 
court  shall  be  sold  at  the  court-house  door  of  the  county 
in  which  the  property  or  some  part  thereof  is  situate,  on 
the  first  Monday  in  every  month,  or  dm-ing  the  first  three 
days  of  the  term  of  the  superior  court  of  said  county,  un- 
less in  the  order  directing  the  sale,  some  other  place  and 
time  is  designated;  and  then  it  shall  be  sold  as  directed 
in  such  order,  on  any  day  except  Sunday  or  holidays, 
after  advertising  the  same  as  required  by  law. 

Mordccai  v.  Speight,  3  Dev.,  428;  Avery  v.  Rose,  4  Dev.,  549;  State  v. 
Rives,  5  Ired.,  297;  Brooks  v.  Ratcliffe.  11  Ired.,  321 ;  Briggs  v.  Bickell,  68— 
239;  Wade  v.  Saunders,  70—270;  Hayes  v.  Hunt,  85—306;  Mayers  v.  Carter, 
87—146. 

Sec.  455.  Sale  may  be  postponed  from  day  to  day,  but  not 
more  than  six  days.     1868-'9,  c.  237,  s.  9. 

The  sheriff  or  other  person  making  the  sale,  for  the 
absence  of  bidders  or  any  other  just  cause,  may  postpone 
the  same  from  day  today,  but  not  for  more  than  six  days 
in  all,  and  upon  such  postponement  he  shall  ])ost  a  notice 
thereof  on  the  court-house  door  of  his  county. 

Mayers  v.  Carter,  87—146. 

Sec.  456.  Sale,  how  advertised.    1876-'7,  c.  216.    1881. 

c.  278. 

No  real  property  shall  be  sold  under  execution  until 
notice  of  said  sale  shall  have  been  published  once  a  week 
for  four  weeks,  immediately  preceding  such  sale  in  a 
newspaper,  if  any  there  be,  published  in  the  county 
where  such  sale  is  to  be  made:  Provided,  that  the  costs  of 
such  publication  shall  not,  in  any  case,  exceed  three 
dollars,  to  be  taxed  as  other  costs  in  such  proceedings  or 
action. 

If  no  newspaper  be  publisbed  in  a  county  wherein 


I 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  177 

the  sale  is  to  take  place,  then,  in  lieu  of  such  pubncation 

notice  of  such  sale  shall  be  posted  for  thn-ty  days  at  the 

door  of  the  court  house  of  the  county  in  which  the  sale 

is  to  take  place,  and  at  three  other  public  places  in  such 

county. 

Sec.  457.  Notice  of  sale  to  be  served  on  defendant,  aud 

in  certain  cases  on   the  governor.      18«8-'9,   c.  237, 

s.  11.  1876-'7,  c.  224,  s.  1. 
In  addition  to  the  advertisement  above  required,  the 
sheriff  shall  in  every  case,  at  least  ten  days  before  a  sale 
of  real  property  under  execution,  serve  a  copy  ot  so  much 
of  the  advertisement  as  relates  to  the  real  property  ot  any 
defendant  on  him  personally,  if  he  be  found  m  the  county, 
or  on  his  agent  if  he  have  a  known  agent  therein,  or  it 
he  cannot  be  found  within  the  county,  and  has  no  known 
agent  therein,  but  his  address  be  known,  by  mail  to  such 
address;  and  the  date  of  service  shall  be  ascertained  by 
the  usual  course  of  the  mail  from  the  place  where  sent 
to  the  place  of  its  address:  Provided,  that  in  case  ot  the 
sale  under  execution,  or  under  the  order  of  any  court  ot 
any  property,  real  or  personal,  in  which  the  state  shall 
be  interested  as  a  stockholder  or  otherwise,  notice  m 
writing  shall  be  served  upon  the  governor  and  attorney 
general,  at  least  thirty  days  before  the  sale,  of  the  said 
time  and  place  of  sale,  and  under  what  process  the  sale 
is  made,  otherwise  said  sale  shall  be  invalid. 

Sec.  458.  All  private  acts  aUowing  land  to  be  sold  repealed. 
1868-'9,  c.  237,  s.  12. 

All  private  acts,  by  which  lands  in  particular  counties 
are  reciuired  or  allowed  to  be  sold  at  places,  or  at  tunes, 
other  than  those  hereinafter  prescribed,  are  hereby  re- 
pealed. 

Sec.  4.50.  Time  of  commencing  sale.  R.  C,  c.  45,  s.  17. 
1794,  c.  41,  s.  1. 

No  sale  under  an  execution  or  decree  shall  commence 
before  ten  o'clock  in  the  morning,  or  after  four  o'clock  in 
the  evening,  of  the  day  on  which  the  sale  is  to  be  made. 

Sec.  460.  Sale  of  personal  property  under  execution, 
when  and  where  advertised.  B.  C,  c.  45,  s.  16.  1808, 
c.  753,  s.  2.     1820,  c.  1066,  s.  1. 

No  sale  of  personal  property  under  execution  shall  be 
made  until  the  same  has  been  advertised  for  ten  days  at 
the  door  of  the  court  house  of  the  county  m  which  the 


178  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

same  is  to  be  sold,  and  at  three  other  pubhc  places  in  said 
county,  and  the  advertisement  shall  designate  the  place 
and  the  time  of  said  sale. 

Sec.  461.  Penalty  for  selling  contrary  to  law.    R.  C,  c. 
45,  s,  18.     1820,  c.  1566,  s.  2.     1822,  c.  1153,  s.  3. 

Any  sheriff  or  other  officer,  who  shall  make  any  sale 
contrary  to  the  true  intent  and  meaning  of  this  sub- 
chapter, shall  forfeit  and  pay  two  hundred  dollars  to  any 
person  suing  for  the  same,  one-half  for  his  own  use  and 
the  other  half  to  the  use  of  the  county  where  the  oflf ence 
is  committed. 

McKce  V.  Lineberger,  69—217. 

Sec.  462.  No  sale  for  want  of  bidders,  what  officer  shall 
state ;  penalty.    B.  C,  c.  45,  s.  lO.    1815,  c.  887,  s.  1. 

Whenever  a  sheriff  or  other  officer  shall  return  upon 
any  execution,  that  lie  has  made  no  sale  for  want  of 
bidders,  he  shall  state  in  his  return  the  several  places  at 
which  he  has  advertised  the  sale  of  the  property  levied 
on,  and  the  places  at  which  he  hath  offered  the  same  for 
sale  ;  and  any  officer  failing  to  make  such  specification, 
shall  on  motion  be  subject  to  a  fine  of  forty  dollars  ;  and 
every  constable,  for  a  like  omission  of  duty,  shall  be 
subject  to  a  fine  of  ten  dollars,  for  the  use  and  benefit  of 
the  plaintiff  in  the  execution ;  for  which,  on  motion  of 
the  plaintiff,  judgment  shall  be  gi-anted  by  the  court  to 
which  the  execution  shall  be  returned ;  or,  in  the  case  of 
a  justice's  execution,  by  any  justice  to  whom  the  execu- 
tion shall  be  returned  :  Provided,  that  nothing  in  this 
section,  nor  any  recovery  under  the  same,  shall  be  a  bar 
to  any  action  for  a  false  return  against  the  sheriff  or 
other  officer. 

Sec.  463.  Forthcoming  bond  may  be  taken  for  personal 
property.     R.   C,   c.   45,   s.   21.     1807,    c.    731,   s.   3. 

1828,  c.  12,  s.  2. 
If  any  sheriff  or  other  officer,  who  may  have  levied  an 
execution  or  other  process  upon  personal  property,  shall 
permit  the  same  to  remain  with  the  possessor,  such 
officer  may  take  a  bond  for  the  forthcoming  thereof  to 
answer  the  said  execution  or  process,  which  bond  shall 
be  attested  by  a  credible  witness  ;  but  the  officer  shall 
nevertheless,  in  all  respects,  remain  liable  as  heretofore 
to  the  plaintiff's  claim. 

Foster  v.  Frost,  4  Dcv.,  424;  Gray  v.  Bowles,  1  D.  &  B.,  437;  Poteet  ▼. 
Bryson,  7  Ired.,  337;  Grady  v.  Thrcadgill.  13  Ired.,  228 


Chap.  10.)    CODE  OF  CIVIL  PROCEDURE.  ITO 

see.  4«4.  B„re..  .o  ^-e    f;.™*"^^^"^   S^I'^sU'e! 
property.      K.  *~",  c.  to,  a.  -—   xon^. 

When  such  hond  shall  be  taken,  the  officer  shall 
sTDBcifv  therein  the  property  levied  upon,  and  shaU  fur- 
Sto  thrsurety  a  list  of  the  property  m  writing  under 
h  Aand  attSb^  least  one  credible  witness  and 
statin- thereS  the  day  of  sale;  and  the  property  so  levied 
finnnfhaU  be  deemed  in  the  custody  of  the  surety,  as  the 
3?et1h?officer:  and  all  other  executions  thereafter 
levied  on  said  property  shaU  create  a  lien  on  the  sa^e 
from  and  after  the  respective  levies,  and  shall  besatisnea 
accordSr-lv  out  of  the  proceeds  of  the  sale  of  said  prop- 
erty bul:  the  officer  thereafter  levying  shall  not  take  the 
property  out  of  the  custody  of  the  surety:  Pro^ff 
Siat  in  aU  such  cases  sales  of  chattels  shal  take  place 
within  thirtv  davs  after  the  first  levy  and,  it^saie  sriciu 
S^t  be  made^v^^^^  the  time  aforesaid,  any  other  officer 
who  may  have  levied  upon  the  property,  may  seize  and 

sell  the  same. 

If  the  condition  of  such  bond  be  broken,  the  sheriff  or 
otier  officer,  on  giving  ten  days'  P^^J^°"«  "J^^^^jf^^J^.^T- 
tincr  to  any  obligor  therein,  may,  on  motion,  Jnavejuag 
nS  against  him  in  a  summary  ^^f^^^\}i''Z" ^^\Z 
perior  court,  or  before  a  justice  of  the  peace  as  the  case 
may  be,  of  the  county  m  w  nch  such  ofcei  may  reside, 
for  all  such  damages  as  said  officer  may  have  sustainea, 
or  be  ad  udged  haWe  to  sustain,  not  exceeding  the  peii- 
altforthe  bond,  to  be  ascertained  by  a  ]ury,  under  the 
direction  of  the  court  or  justice. 

Sec    466.  Officer   allowed   pay    for  keeping  horses,  &c. 
K.  C,  c.  45,  s.  25.      1807,  c.  731,  s.  1. 

The  court  or  justice  shall  make  a  reasonable  allowance 
to  officers  for  keeping  and  maintaining  horses,  cattle 
hogsSrsLep,andlllStherproperty,thekeepingofw^^^^^^^ 
may  be  chargeable  to  them,  taken  into  their  custody  un- 
Segal  process  ;  and  such  allowance  may  be  retained 
by  thf  officers  out  of  the  sales  of  the  Property,  m  prefer 
ence  to  the  satisfaction  of  the  process  under  which  the 
property  was  seized  or  sold. 


180  CODE  OF  CIVIL  PEOCEDUEE.     [Chap.  10. 

Sec.  467.  Officer  to  make  out  his  accouut  and  file  it 
witli  executiou.      R.  C.,  c.  45,  s.  26.       1807,  c.  731 

s.  2.  ' 

Every  such  officer  shall  make  out  his  account,  and  if 
required  shall  give  the  debtor  or  his  agent  a  copy  thereof 
signed  by  his  own  hand,  and  shall  return  the  account 
with  the  execution  or  other  process,  under  which  the 
property  has  been  seized  or  sold,  to  the  justice  or  the 
court  to  whom  the  execution  or  process  is  returnable 
and  shall  swear  to  the  correctness  of  the  several  items 
theiein  set  forth  ;  otherwise  he  shall  not  be  permitted  to 
retain  the  same. 

Sec.  468.  Purchaser  at  execution  sale  may  recover  of  de- 
fendant in  the  execution,  when  the  title  to  property 
sold  is  defective.    R.  C,  c.  45,  s.  27.    1807,  c.  723. 

Where  property,  real  or  personal,  shall  be  sold  on  anv 
execution  or  decree,  by  any  officer  authorized  to  make 
the  sale,  and  the  sale  is  legaUv  and  in  good  faith  made 
and  such  property  be  not  the  property  of  the  person 
against  whose  estate  such  execution  or  decree  may  have 
issued,  by  reason  of  which  the  purchaser  may  have  been 

^"7*^*^  of  the  same  property,  or  may  have  been  com- 
pelled to  pay  damages  in  heu  thereof  to  the  owner;  in 
every  such  case  the  purchaser,  his  executors  or  adminis- 
trators, may  sue  the  person  against  whom  such  execu- 
tion or  decree  may  have  issued,  or  the  person  legally  rep- 
resenting him,  in  a  civil  action,  and  recover  such  sum  as 
he  may  have  paid  for  the  property,  with  interest  from 
the  time  of  payment:  Proiided,  that  such  property  if 
the  sa,me  is  personal  property,  be  present  at  the  sale,  and 
actually  deUvered  to  the  purchaser. 

Halcombe  v.  Loudermilk,  3  Jon.,  491;  Laws  v.  Thompson,  4  Jon., 
104;  Brown  v.  Smitli,  8  Jon.,  331;  McDoiigald  v.  McLean,  1  Wins!  J2o' 
Pemberton  v.  McRae,  75—497;  Wall  v.  Fairley,  77—105;  Hollidav  v  SIc- 
Millan,  83—270. 

Sec.  460.  Defendant  dvingr  in  execution,  debt  not  dis- 
charged; new  execution  against  tlie  property.  R.  C'.,  c. 
45,  s.  2.     21  James  1,  c.  24,  s.  223.  ' 

Parties,  at  who.se  suit  the  body  of  any  person  shall  be 
taken  in  executiou  for  any  judgment  recovered,  tlu^ir  ex- 
ecutors or  administrators  may,  after  the  death  of  the 
person  so  taken  and  dying  in  execution,  have  new  execu- 
tion against  the  property  of  the  person  deceased,  as  they 
might  have  had  if  such  person  had  never  been  in  execu- 
tion. 


I 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  181 

Sec.  470.  Clerks  to  issue  executions  within  ^^  ^^^f^' 
penalty  of  one  hundred  dollars  for  failure.  R.  C  c.  45, 
s.  39.     1850.  c.  17,  ss.  1,  3,  3. 

The  clerks  of  the  superior  court  shall  issue  executions 
on  all  iudsments  rendered  in  their  respective  cou>Js,  un- 
less othemfse  directed  by  the.plaintiff  therein  within  six 
weeks  of  the  rendition  of  the  judgment,  and  shaU  mdor.e 
nnon  the  record  the  date  ot  such  issue;  and  it  the  execu 
Zns  issued   are   not   returned  satisfied  to  the  courts  to 
wS  they  are  made   returnable,  the   clerks  shall  issue 
I/S  executions,^ithin  six  weeks  thereafter,  unless  oth- 
e  ^se  fnstSed  as  aforesaid.  .  And  fveiy  derk  who 
shall  fail  to  comply  with  the  requirements  of  this  sect  on 
shall  be  1  able  to^be  amerced  in  the  sum  of  o'^e  hundred 
dollars   for  the  benefit  of  the  party  aggrieved,  undei  the 
same  rues  that  are  provided  by  law  for  amercing  shei^ 
Srand  shall  be  further  liable  to  the  party  in] u red  by 
suit  upon  his  bond. 

Bank  V.  Stafford,  2  Jon.,  98;  State  v.  McLeod.  5  .Jon  3!8;  J'-P^-  ^^ 
Simpson,  63-534;  Badham  v.  Jones.  64-65.5;  ..  parU  Schenck,  65-853. 
McKee  v.  Lineberger,  69—317. 

Sec  471.  Officer  to  prepare  deeds  for  property  sold.  B. 
C  c.  4,5,  s.  30.  1848,  c.  39. 
Sheriffs  or  other  officers,  selling  lands  by  authority 
of  anv  execution  or  process,  shall,  upon  payment  of 
?L  mice  Prepare,  execute  and  dehver  to  the  purchaser 
adeed  foJ  the  property  purchased:  Promded,  that  the 
puicliase^-  of  land  shall  furnish  the  officer  with  a  descrip- 
tion of  the  land. 

Patrick  V.  Carr.  Winst.   Bq.,    87;    Skinner  v.  Warren,  81-373;    Fox  v. 
Cline,  85—173. 

Sec  473.  Costs  on  execution  satisfied  in  part  or  in  whole 
;«  be  paid  to  clerk;  penalty  forty  dollars  tor  ta.lure.  K. 
S.,  c.  76,  s.  5.     1833,  c.  1 149,  s.  1. 

The  sheriff  or  other  officer  shall  pay  the  costs  on  all  ex- 
ecu   ons  which  shall  be  satisfied   in  whole  or  m  part,  to 

party  °sSS  ""Ser  thf.same  rales  that  are  provided 
by  law  for  amert-iiig  sherifts. 


182  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 


CHAPTER  TWO. 

DEFENDANT'S  CLAIM  FOE  IMPEOVEMENT  BEFOEE 
ISSUING  EXECUTION. 


Section. 

473.  Petition  to  be  filed  by  claimant; 

execution  suspended;  jury  to 
assess  damages  and  allowance. 

474.  Jury  to  estimate  the  annual  value 

of  land. 

475.  Defendant  not  liable  for  more 

than  three  years,  unless  he 
claims  improvements. 

476.  Value  of  defendant's  improve- 

ments to  be  estimated. 

477.  Improvements  to  b.ilance  rents. 

478.  Jury  to  find  a  verdict  for  the 

Dalauce  for  plaintifl  or  defend- 
aut. 

479.  Balance  due  defendant  to  con- 

stitute a  lien  until  paid. 

480.  Plaintiff  claiming  a  less  estate, 

and  paying  defendant  allow- 
ance, may  recover  out  of  re- 
mainderman. 


Section. 

481.  Does  not  apply  to  action  brought 

by  mortgagee. 

482.  Defendant  claiming  allowance, 

plaintiff  may  have  his  estate 
valued  without  improvement. 

483.  Value  of  premises,  how  made. 

484.  Plaintiff  may  elect  to  let  de- 

fendant take  premises  at  valu- 
ation. 

485.  Payments  to  be  made  in  court; 

land  bound;  if  payments  not 

made,  land  sold. 
480.  When  plaintiff  is  a  feme  covert 

minor  or  in.sane,  what  is  to  be 

done  with  proceeds. 
487.  When    defendant    evicted    by 

force  of  a  bettt  r  title,  he  or  his 

representatives    may    recover 

from  plaintiff. 


Sec.  473.  Petition  to  be  filed  by  claimant;  execution  sus- 
pended;  .jury  to  assess  damages  and  allowance.  1871- 
'3,c.  147,  s.  1. 

Any  defendant  again.st  whom  a  judgment  shall  be  ren- 
dered for  land,  may,  at  any  time  before  the  execution  of 
such  judgment,  present  a  petition  to  the  court  rendering 
the  same,  stating  that  he,  or  those  under  whom  he 
claims,  while  holding  the  premises  under  a  color  of  title 
be.ieved  by  him  or  them  to  be  good,  have  made  perma- 
nent miprovements  thereon,  and  praying  that  iie  may  be 
allowed  for  the  same,  over  and  above  the  value  of  the 
use  and  occupation  of  such  land;  and  thereupon  the  court 
may,  if  satisfied  of  the  probable  truth  of  the  allegation 
suspend  the  execution  of  such  judgment  ajid  impanel  a 
3ury  to  assess  the  damages  of  the  plaintiff  and  the  allow- 
ance to  the  defendant  for  such  improvements:  Provided 


Chap.  10.]    CODE  OF  CIVIL  PROCEDUEE.  183 

tliat  in  any  such  action,  such  inquiry  and  assessment 
may  be  made  upon  the  trial  of  the  cause. 

Pope  V.  Whitehead,  6^191;  Daniel  v.  C--Pl-V ^^l^/zi';"'"  ^ 
Scott,  81-383;  Reed  v.  Exam,  84-430;  Wharton  v.  Moore,  84-479,  Scott 
V.  Battle,  85—184. 

Sec.  474.  Jury    to    estimate  the   annual  value  of   land. 
1871-'2,  c.  147,  s.  3. 

The  iury  in  assessing  such  damages  shall  estimate 
against  the  defendant  the  clear  annual  value  of  the  prem- 
fsls  during  the  time  he  was  in  possession  thereof,  exclu- 
sive of  thf  use  by  the  tenant  of  the  improvements  there^ 
on  made  by  himlelf  or  those  under  whom  he  clarms  ^^^i 
also  the  damages  for  waste,  or  other  injury,  to  the  prem- 
ises committed  by  the  defendant. 

Wetherell  v.  Gorman,  74—603. 

sec.  475.  Defendant  not  liable  for  more  than  three  years, 
unless  he  claims  improvements.    187 1-  -,  c.  i*  < ,  x-  o. 

The  defendant  shall  not  be  liable  for  such  ai;nual  value 
for  any  longer  time  than  three  years  before  the  suit  or 
for  damages  for  any  such  waste  or  other  injury  done  be- 
f o5e  said  three  years,  unless  when  he  claims  for  improve- 
ments as  aforesaid. 

Sec.  470.  Value  of  defendant's  improvements  to  he  es- 
timated. 1871-'3,  c.  147,  s.  4. 
If  the  iury  sliall  be  satisfied  that  the  defendant,  or 
those  under  whom  he  claims,  made  on  the  premises  at  a 
time  when  there  was  reason  to  believe  the  title  good  un- 
de^  which  he  or  they  were  holding  the  said  premises,  per- 
manlu  and  valuable  improvements,  they  shall  estimate 
S  his  favor,  the  value  of  such  improvements  as  were  so 
made  before  notice,  in  writing  of  the  title  under  which 
the  plaintiff  claims  not  exceeding  the  amount  actually 
expended  in  making  them  and  not  exceeding  the  amount 
?J  which  the  value  of  the  premises  is  actually  increased 
thereby  at  the  time  of  the  assessment. 

Daniel  v.  Grumpier,  75—184. 
Sec.  477.  Improvements    to   balance  rents.    1871-'2,  c. 

147,  s.  5.  .A   +V, 

If  the  sum  estimated  for  the  improvements  exceed  the 
damages  estimated  by  the  jury  against  the  defendant  as 
aforesaid,  they  shall  then  estimate  against  him  for  any 
time  before  the  said  three  years,  the  rents  and  promts  ax:^ 
cruld  against,  or  damages  for  waste  or  other  injury  done 


184  CODE  OF  CIVIL  PEOOEDURE.     [Chap.  10. 

by  him,  or  those  under  whom  he  claims,  so  far  as  may 
be  necessary  to  balance  his  claim  for  impi'ovements-  but 
in  such  case  he  shall  not  be  liable  for  the  excess,  if  any 
of  such  rents,  profits,  or  damages  beyond  the  value  of  im- 
provements. 

Sec.  478.    Jury  to  find  a  verdict  for  the  balance,  for  plaiu- 
tlftor  defendant.    1871-'2,  c.  147,  s.  C. 

After  offsetting  the  damages  assessed  for  the  plaintiff 
and  the  allowances  to  the  defendant  for  the  improve- 
ments, if  any,  the  jury  shall  find  a  verdict  for  the  bal- 
ance for  the  plaintiff  or  defendant,  as  the  case  may  be 
and  judgment  shall  be  entered  therefor  according  to  the 
verdict. 

Sec.479.    Balance  due  defendant  to  constitute  a  lien  until 
paid.    1871-'2,  c.  147,  s.  7. 

Any  such  balance  due  to  the  defecdant  shall  constitute 
a  hen  upon  the  land  recovered  by  the  plaintiff  until  the 
same  shall  be  paid. 

Sec.  480.  Plaintiffclaimingaless  estate,  and  paving  de- 
fendant allowance,  may  recover  out  of  remaiuderuiau 
1871-'2,  c.  147,  s.  8. 

If  the  plaintiff  claim  only  an  estate  for  life  in  the  land 
recovered  and  pay  any  sum  allowed  to  the  defendant 
for  improvements,  he  or  his  personal  representative  may 
recover  at  the  determination  of  his  estate  from  the  re- 
mainderman or  reversioner,  the  value  of  the  said  im- 
provements as  they  then  exist,  not  exceeding  the  amount 
as  paid  by  hnu,  and  shall  have  a  lien  therefor  on  the 
premises  in  like  manner  as  if  they  had  been  mortgaged 
for  the  payment  thereof,  and  may  keep  possession  of  said 
premises  until  it  be  paid. 

Sec.  481.  Does  not  apply  to  action  broug:lit  by  inortcaffce. 
]871-'2,  c.  147,  s.!).  fe  fe  «• 

Nothing  herein  shall  extend  or  apply  to  any  suit 
brought  by  a  mortgagee  or  liis  heirs  or  assigns  against  a 
mortgagor  or  his  heirs  or  assigns  for  the  recovery  of  the 
mortgaged  premises. 

Wharton  v.  Moore,  8-1—479. 

Sec.  483.  Defendant  claiming,'  allowance,  plaintiff  may 
have  his  estate  valued  without  improvement.  1871-'2 
c.  147,  s.  10.  ' 

When  the  defendant  shall  claim  allowance  for  improve- 
ments, the  plaintiff'  may  by  entry  on  the  record  retpiiie 


» 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  185 

that  the  value  of  his  estate  in  the  premises  without  the 
improvements  shall  also  be  ascertamed. 

Sec.  4:83.  Value  of  premises,  how  made.    1871-'2,  c.  147, 

The  value  of  the  premises  in  such  cases  shall  be  esti- 
mated as  it  would  have  been  at  the  tune  of  the  mquuy, 
™  no  such  improvements  had  been  made  on  the  premises 
hv  the  tenant  or  any  person  under  whom  he  claims,  and 
shall  be  ascertained  in  the  manner  hereinbefore  provided, 
for  estimating  the  value  of  improvements. 

Sec  484.    Plaintiff  may  elect  to  let  defendant  take  prem- 
ises at  valuation.    1871-'3,  c.  147,  s.  12. 

The  plaintiff  in  such  case,  if  judgment  is  rendered  for 
him  may,  at  any  time  during  the  same  term,  or  before 
Sment  is  rendered  on  the  assessment  of  the  value  of 
the  improvements,  in  person  or  by  his  attorney  m  the 
cause  enter  on  the  record  his  election  to  relinquish  his 
estate  in  the  premises  to  the  defendant  at  the  value  as 
Scerta  ned  and  the  defendant  shall  thenceforth  hold  all 
the  estate  that  the  plamtiff  had  therein  at  the  commence- 
ment of  the  suit:  Provided,  he  pay  therefor  the  said  value 
with  interest  in  the  manner  in  which  the  court  may  order 
it  to  be  paid. 

Sec  485.  Payments  to  be  made  in  court;  land  bound;  if 
payments  not  made,  land  sold.  1871-'2,  c.  147,  s.  13. 
The  payments  shall  be  made  to  the  plaintiff  or  into 
court  for  his  use,  and  the  land  shall  be  bound  therefor, 
and  if  the  defendant  fail  to  make  the  said  payments  with- 
in or  at  the  times  hmited  therefor  respectively,  the  court 
mav  order  the  land  to  be  sold  and  the  proceeds  applied  to 
the  payment  of  said  value  and  interest,  and  the  surplus 
if  any  to  be  paid  to  the  defendant;  but  if  the  said  net 
proceeds  be  insufficient  to  satisfy  the  said  value  and  in- 
terest, the  defendant  shall  not  be  bound  for  the  deh- 
ciency. 

Sec  486.  When  plaintiff  is  a  feme  covert,  minor  or  in- 
sane, what  is  to  be  done  with  proceeds.  1871-'2,  c. 
147   s.  14. 

If  the  party  by  or  for  whom  the  land  is  claimed  in  the 
suit  be  a  feme  covert,  minor,  or  insane,  such  value  shall 
be  deemed  to  be  real  estate,  and  be  disposed  of  as  the 
court  may  consider  proper  for  the  benefit  of  the  persons 
interested  therein. 


186  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

Sec.  487.  When  defendant  evicted  by  force  of  abetter 
title,  he  or  his  representatives  may  recover  from  plain- 
tiff.   1871-'2,  c.  147,  s.  15. 

If  the  defendant,  his  heirs  or  assigns  shall,  after  the 
premises  are  so  relinquished  to  him,  be  evicted  thereof  by- 
force  of  any  better  title  than  that  of  the  original  plain- 
tiff, the  person  so  evicted  may  recover  from  such  plaintiff 
or  his  representatives,  the  amount  so  paid  for  the  prem- 
ises, as  so  much  money  had  and  received  by  such  plain- 
tiff in  his  lifetime  for  the  use  of  such  person,  with  lawful 
interest  thereon  from  the  time  of  such  payment. 


CHAPTER  THREE. 

PKOOEEDINGS  SUPPLEMENTAET  TO  THE  EXECU- 
TION. 


Section. 

488.  (1)  Execution  returned  unsatis- 

fied, order  to  answer  concern- 
ing his  property. 
(3)  E.TCCution    issued,   not    re- 
turned, order  to  issue  upon 
affidavit. 

(3)  Either  party  to  examine 
witness. 

(4)  Debtor  leaving  the  state,  or 
concealing  himself,  upon  afli- 
davit  of  plaintiff  that  lie  has 
property  which  lie  refuses  to 
apply,  may  be  arrested  and 
ordered  to  give  undertaking. 

(5)  No  person  to  be  excused  from 
answering  because  it  may 
criminate  h;m,  nor  because 
he  has  executed  a  convey- 
ance, but  his  answer  not  to  be 
used  against  him  in  any  crim- 
inal prosecution. 

(6)  Court  or  judge  may  forbid 
transfer  of  properly. 

489.  Execution   issued,   any  debtor 

of  judgment  debtor  may  pay 
to  sheriff. 


Section. 

490.  Execution  issued  and  returned, 

upon  affidavit,  order  to  issue 
to  any  person  having  prop- 
erty of  judgment  debtor  or 
to  any  person  indebted  to 
him  over  ten  dollars,  to  ap- 
pear and  answer;  proceedings 
against  joint  debtors. 

491.  Witness  required    to   testify  as 

on  trial  of  an  issue. 

492.  Party  or  witness  to   appear  be- 

fore referee  and  compelled  to 
answer  under  oath;  examina- 
tion certified  to  court  or 
judge;  corporations  to  an- 
swer by  an  officer. 

493.  Property  of  debtor  not  exempt 

from  execution  to  be  applied 
to  payment  of  judgment; 
exception. 

494.  Judge     to      appoint    receiver; 

transfer  of  property  forbid- 
den;  other  creditors  having 
instituted  supplementary  pio- 
ccedlngs    to    be  notified ;    no 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  187 

Section.  !  Section. 


more  th-n  one  receiver  ap 
pointed, 
495.  Clerk  of  superior  court  to  file 
order,  record  it,  provide  re- 
ceiver witli  a  copy;  receiver 
to  be  vested  with  property; 
receiver   subject    to    control 


497.  Property  claimed    by   a  third 

party,  or  debt  denied,  receiv- 
er to  bring  action,  and  in 
meantime  transfer  or  payment 
forbidden. 

498.  Judge  may  order  a  reference,  to 
report  the  evidence  or  facts. 


of  ^utlo-e                                      499.  Costs  to  be  allowed. 

496.  Order  to  be  filed  in  the  office  of    500.  Disobedience   to  order;  punish- 

what     clerk,    before    vested  men'- 
with  real  property.                   | 

sec.  488.    Executiou  returned  unsatisfied,  order  to  an- 
;wer  concerning  His  property.    C.  C.  P..  s.  264.   1868- 

(itwh^n  an  execution  against  property  of  the  judg- 
ment debtor,  or  any  one  of  several  debtors  m  the  same 
Sment,  issued  to  the  sheriff  of  the  county  where  he 
esdes  or  has  a  place  of  business,  or  if  he  do  not  les.de 
n  the  state,  to  the  sheriff  of  the  county  where  a  ]udg- 
rnent  roll  o  •  a  transcript  of  a  justice's  judgment  is  filed 
s  returned  unsatisfied,^n  whole  or  in  part,  the  JVKlgment 
cred  tor,  at  any  time  after  such  return  made,  and  withm 
three  years  from  the  time  of  issuing  the  execution,  is  en- 
tit  ed  to  an  order  from  the  court  to  which  the  execution 
Is  returned,  or  from  the   judge  «^^reof,  requiring  such 
debtor  to  appear  and  answer  concerning  his  P^ope  ty   be 
fore  such  court  or  judge,  at  a  time  and  place  specified  m 
iSe  order,  within  the  county  to  which  the  execution  was 

Toiv.Kirkland,  6^250;  Parks  v  Sprinkle.  64-637;  Walston  t. 
Brvan  64-764-  McKeithan  v.  Walker,  06-95;  Hutchison  v.  Symons, 
67-156  Vood,  V.Jordan,  69-189;  Rankin  v.  Minor,  7'^424,Wh.te- 
h  ad  V.  Hellen  74-679;  Hasty  v.  Simpson,  77-69;  Blake  v.  Respass. 
77-193-  Rand  v.  Rand,  78-12;  La  Fountaine  v.  Southern  Under-^riters, 
79_514'  Runion  v.  Ramsav.  80-60;  Weiller  v.  Lawrence,  81-65;  La 
Fountaine  v.  Southern  Underwriters.  83-132;  Hinsdale  v.  Smcla.r. 
83—338;  Bronson  v.  Ins.  Co.,  85 — 411. 

EXECUTION  ISSUED.  NOT   RETURNED,  ORDER  TO  ISSUE  UPON 
AFFIDAVIT. 

(2)  After  the  issuing  of  an  execution  against  property, 
and  upon  proof  by  affidavit,  of  a  party,  his  agent  or 
attorney?  t?  the  satisfaction  of  the  court  or  a  judge 
thereof!  that  any    judgment    debtor    residmg    m    the 


188  CODE  OF  CIVIL  PEOCEDUEE.     [Chap.  10. 

judicial  district  where  such  judge  or  officer  resides,  has 
property  which  he  unjustly  refuses  to  apply  toward  the 
satisfaction  of  the  judgment,  such  court  or  judge  may 
by  an  order,  require  the  judgment  debtor  to  appear  at  a 
specified  time  and  place,  to  an?wer  concerning  the  same; 
and  such  proceedings  may  thereupon  be  had  for  the 
application  of  the  property  of  the  judgment  debtor 
towards  the  satisfaction  of  the  jndgment  as  are  provided 
upon  the  return  of  an  execution,  and  the  judgment 
creditor  shaU  be  entitled  to  the  order  of  examination 
under  this  sub-division,  and  under  sub-division  one  of 
this  section,  although  the  judgment  debtor  may  have  an 
equitable  estate  in  land  subject  to  the  hen  of  the  judg- 
ment, or  may  have  choses  in  action,  or  other  things  of 
value  unaffected  by  the  hen  of  the  judgment,  and  incap- 
able of  levy.  ^ 

Howey  v.  Miller,  67—459;    Bronson  v.  Inturance  Co.,  85—411     Youne 
V.  Rollins.  85—485. 


EITHEH  PARTY  TO   EXAMINE   WITNESSJSS. 

(3)  On  an  examination  under  this  section,  either  party 
may  examine  witnesses  in  his  behalf,  and  the  judgment 
debtor  may  be  examined  in  the  same  manner  as  a 
witness. 

La  Fountain  v.  Southern  Underwriters,  83—133;  Bronson  v.  Insurance 
Co.,  85—411. 


DEBTOR  LEAVING  THE  STATE,  OR  CONCEALING  HIMSELF, 
UPON  AFFIDAVIT  OF  PLAINTIFF,  THAT  HE  HAS  PROP- 
ERTY WHICH  HE  REFUSES  TO  APPLY,  MAY  BE  ARRESTED 
AND  ORDERED  TO  GIVE  UNDERTAKING. 

1868-'9,  c.  148,  s.  4.    1868-'9,  c.  277. 

(4)  Instead  of  the  order  requiring  the  attendance  of 
the  judgment  debtor,  the  court  or  judge  may,  upon  proof 
by  affidavit  or  otherwise,  to  his  satisfaction,  that  there 
IS  danger  of  the  debtor  leaving  the  state,  or  concealing 
himself,  and  that  there  is  reason  to  believe  that  he  has 
property  which  he  unjustly  refuses  to  apply  to  such 
judgment,  issue  a  warrant  requiring  the  sheriff  of  any 
county  where  such  debtor  may  be,  to  arrest  him  and 
bring  him  before  such  court  or  judge.  Upon  being 
brought  before  the  court  or  judge,  he  may  be  examined 
on  oath,  and,  if  it  then  appears  that  there  is  danger  of 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  189 

the  debtor  leaving  the  state,  and  that  he  has  property 
which  he  has  unlustly  refused  to  apply  to  such  judg- 
ment he  shall  be  ordered  to  enter  into  an  undertaking, 
with  one  or  more  sureties,  that  he  will  from  time  to 
lime,  attend  before  the  court  or  .ludge  as  he  shaU  direct, 
aiS  hat  he  will  not,  during  the  pendency  of  the  proceed- 
ings dispose  of  any  property  not  exempt  from  execution 
in  default  of  entenng  into  such  uudertakmg,  he  may  be 
committed  to  prison  by  warrant  of  the  court  or  judge,  as 
for  a  contempt. 

Bronson  v.  Ins.  Co.,  85—411. 

NO  PERSON  TO  BE  EXCUSED  FROM  ANSWERING  BECAUSE  IT 
MAY  CRIMINATE  HIM,  NOR  BECAUSE  HE  HAS  EXECUTED 
A  CONVEYANCE,  BUT  ANSWER  NOT  TO  BE  USED  AGAINST 
HIM  IN  ANY  CRIMINAL  PROSECUTION. 

(5^  No  person  shall,  on  examination  pursuaiit  to  tliis 
chapter,  be  excused  from  answering  any  question  on  the 
gi-ound  that  his  examination  will  tend  to  convict  him  ot 
the  commission  of  a  fraud;  but  his  answer  shall  not  be 
used  as  evidence  against  him  in  any  criminal  proceeding 
or  prosecution.  #or  shall  he  be  excused  ^^ome^nsj^en^ 
any  question,  on  the  ground  that  he  has,  before  the  ex- 
aminkon,  executed  any  conveyance,  assignment  or 
transfer  of  his  property  for  any  purpose,  but  his  answer 
shah  not  be  used  as  evfdence  against  him  m  any  criminal 
proceeding  or  prosecution. 

La  Fountain  v.  Soulhein  Underwriters,  83—132. 
COURT  OR  JUDGE  MAY  FORBID  TRANSFER  OF  PROPERTY. 

(6)  The  court  or  judge  may,  by  order,  forbid  a  transfer 
or  other  disposition  Sf  the  property  of  the  ludgment 
debtor  not  ekempt  from  execution,  or  any  interference 

^^Zl7ex^arte  64-302;  Ho^m  v.  Kirkland,  64-250;  P.rks  v.  Sprinkle. 
eS.Vallton  V.  Bryln.  61-764;  Howey  v.  MiHer,  67-459;  Phmips 
V  Trezevant,  70-176;  Perry  v.  Bank.  70-309;  Righton  ^- P™ff  ■  J^''^ ' 
La  Fountain  V.  Southern  Underwriters,  79-514;  Idem.,  83-133;  Bronson 
V.  Insurance  Co.,  85 — 411. 

Sec.  489.    Execntiou    issued,    any  debtor    of  judgment 
debtor  may  pay  to  sheriff.    C.  C.  P.,  s.  265. 

After  the  issuing   of  execution  against  property,   an 


190  CODE  OF  CIVIL  PROCEDUEE.     [Chap.  10, 

persons  indebted  to  the  judgment  debtor,  or  to  any  one 
of  several  debtors  in  the  same  judgment,  may  pay  to  the 
sheriff  the  amount  of  their  debt,  or  so  much  thereof  as 
shall  be  necessary  to  satisfy  the  execution;  and  the  sher- 
iff's receipt  shaU  be  a  sufficient  discharge  for  the  amount 
so  paid. 

Clerk's  office  V.  Allen,  7  Jon.,  1,56;  Parks  v.  Sprinkle.  64^637-  Clerk's 
office  V.  Bank,  66-214;  Howey  v.  Miller,  67^59;  Phillips  v.  TrezevanI 
70—176;  Rishton  v.  Prudeu,  73—61;  Weiller  v.  Lawrence,  81—65;  Smilli 
V.  McMillan,  84—593;  Bronsoa  v.  Ins.  Co.,  85 411. 

Sec.  400.  Execution  i.ssued  and  returned,  upon  affidavit, 
order  to  issue  to  any  person  having,' property  of  judg-- 
ment  debtor  or  to  any  person  indebted  to  hiiii  over  teii 
dollars  to  appear  and   answer;    proceedings    against 
joint  debtors.    C.  C.  P.,  s.  266.     1869-'70,  c.  79,  s.  3. 
After  the  issuing  or  return  of  an  execution  against 
property  of  the  judgment  debtor,  or  of  any  one  of  several 
debtors  m  the  same  judgment,    and  upon  affidavit  that 
any  person  or  corporation  has  property  of  said  judgment 
debtor,  or  is  indebted  to  him  in  an  amount  exceeding  ten 
dollars,  the  court  or  judge  may,  by  an  order,  require  such 
person  or  corporation,  or  any  officer  or  members  there- 
of,  to  appear  at  a  specified  time  and  place,  and  answer 
concerning  the  same.     The  court  or  judge  may  also    in 
its  or  his  discretion,  require  notice  of  such  proceeding  to 
be  given  to  any  party  to  the  action,  in  such  manner  as 
may  seem  to  him  or  it  proper. 

The  proceedings  mentioned  in  this  section  and  in  sec- 
tion four  hundred  and  eighty-eight  may  be  taken  upon 
the  return  of  an  execution  unsatisfied,  issued  upon  a 
judgment  recovered  in  an  action  against  joint  debtors  in 
which  some  of  the  defendants  have  not  been  served 
with  the  summons  by  which  said  action  was  commenced 
so  far  as  relates  to  the  joint  property  of  such  debtors' 
and  all  actions  by  creditors  to  obtain  satisfaction  of  judg- 
ments out  of  the  property  of  joint  debtors  are  maintain- 
able in  the  like  manner  and  to  the  like  effect.  These 
provisions  shall  apply  to  all  proceedings  and  actions  pend- 
ing and  to  those  terminated  by  final  decree  or  judgment. 
Parks  V.  Sprinkle,  61—637;  McKeithan  v.  AYulkcr,  66-95;  Sulton  v' 
Askew,  66—172;  Hutchison  v.  Synions,  67—156;  Howcy  v.  Miller  67— 
459;  Keener  V.  Finger,  70—35;  Phillips  v.  Trczevant,  70—176;  Perry  v 
Bank,  70—309;  RigMon  v.  Prudcn,  73—61;  Bliike  v.  Respass',  77—193; 
Rand  v.  Rand,  78—12;  La  Fountain  v.  Southern  Underwriters'  79— 5I4-! 
Weiller  v.  Lawrence,  81—65;  In  re.  Davis.  81—73;  Bronson  v.  Ins.  Co.,  85 
^411. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  191 

Sec.  491.    Witness  required   to  testify  as  on  trial   of  an 
issue.    C.  C.  P.,  s.  267. 

Witnesses  may  be  required  to  appear  and  testify  on 
anTp-oceSings  under  this  chapter,  m  the  same  manner 
as  upon  the  trial  of  an  issue. 

Bronson  v.  Insurance  Co.,  85—411 
Sec   492.    Party  or  witness  to  appear  before  referee,  and 
;om;;ilecl  to  answer  under  oatli;  examination  cer  ified 
to     court    or    judge;     corporations    to   answer  by  an 
officer.   C.C.  P.,  s.  268.  1870-'l,c.  245,  s.l. 
The  party  or  witness  may  be  required  to  attend  before 
the  court  or  iadge,  or  before  a  referee   appointed  by  the 
roiirt  or  iudge:  k  before  a  referee,  the  examination  s^rall 
be  taken  by   the  referee,  and   certified  to  the  court  or 
Sdge      All  examinations'and  answers  be  ore  a  court  or 
udS'orteferee,  under  this  chapter,  shall  be  on  oath 
excfpt  that  when  a  corporation  answers,  the  answer  shaU 
be  on  the  oath  of  an  officer  thereof. 

Clerk's  office  v.  Bunk,  06-214;  Husty  v.  Simpson,  77-69,  La  Founta.n 
V.  Southern  Underwriters,  83-133;   Bronson  v.  Ins.  Co.,  85-411. 

Sec.  493.    Property  of  debtor  not  exempt  from  execution 
to  be  applied  to  payment  of  judgment;  exception.   C.C. 

p„s.  269.  1870-'l,  c.  245,  s.  1. 

The  court  or  judge  may  order  any  property,  whether 
subiect  or  not  to  be  sold  under  execution,  (except  the 
homestead  and  personal  property  exenaptions  of  the  judg^ 
ment  debtor,Un  the  hands  either  of  himself  oi  of  aiiy 
Sther  per  on  or  due  to  the  judgment  debtor,  to  oe  applied 
towards  the  satisfaction  of  the  judgment;  except  that  t  e 
earmngs  of  the  debtor  for  his  personal  services,  at  any 
time  within  sixty  days.next  preceding  he  or(^er,canno^ 
be  so  applied  when  it  is  made  to  appear,  by  the  debtoi  s 
affidavit  or  otherwise,  that  such  earnings  are  necessary 
?or  the  use  of  a  family  supported  wholly  or  in  part  by 

^  Clerl's°office  v.  Allen.  7  .Jon.,  156;   Clerk's  office  v.  Bank,  66-214;  Rand 
V.  Rand,  78—13;  Bronson  v.  Ins.  Co.,  85—411. 

Sec.  494.  Judge  to  appoint  receiver;  transfer  of  property 
forbidden;  other  creditors  having  instituted  supple- 
mentary  proceedings  to  be  notified;  ii«  ■»«';f  ,V''\"^^"'' 
receiver  appointed.  C.  C.  P.,  s.  270.  1» ^ 0-' 1  C.  24o, 
s  1.  1876-'7,  c.  22;J.  1879,  c.  63.  1881,  c  51. 
The  court  or  judge  having  jurisdiction  over  the  ap- 
pointment of  receivers  may  also  by  order  in  hke  manner, 


192  CODE  OF  CIVIL  PEOCEDURE.     [Chap.  10. 

and  with  like  authority,  appoint  a  receiver  in  proceedings 
under  this  chapter,  of  the  property  of  the  judgment 
debtor,  whether  subject  or  not  to  be  sold  under  execu- 
tion, except  the  homestead  and  personal  property  exemp- 
tions. But  before  the  appointment  of  such  receiver,  the 
court  or  judge  shall  ascertain,  if  practicable,  by  the  oath 
of  the  party  or  otherwise,  whether  any  other  supple- 
mentary proceedings  are  pending  agamst  the  judgment 
debtor,  and  if  such  proceedmgs  are  so  pending,  the 
plamtiff  therein  shall  have  notice  to  appear  before  him, 
and  shall  hkewise  have  notice  of  all  subsequent  proceed- 
ings in  relation  to  said  receivership.  No  more  than  one 
receiver  of  the  property  of  a  judgment  debtor  shall  be 
appomted.  The  court  or  judge  may  also,  forbid  a  trans- 
fer or  other  disposition  of  the  property  of  the  judgment 
debtor  not  exempt  from  execution,  as  homestead  or  per- 
sonal property  exemptions,  and  any  interference  there- 
with. The  title  of  the  receiver  shall  relate  back  to  the 
service  of  the  restraining  order,  hereinbefore  and  herein- 
after provided  for. 

Parks  V.  Sprinkle,  64—637;  LaPountain  v.  Southern  Underwriters,  79— 
514;  Brousou  V.  Ins.  Co.,  85 — 411. 


Sec.  495.  Clerk  of  superior  court  to  file  order,  record  it, 
provide  receiver  with  a  copy;  receiver  to  be  vested  with 
property;  receiver  subject  to  control  of  judge.  C.  C.  P., 
s.  270.    1870.'1,  c.  245,  s.  1. 

Whenever  the  court  or  a  judge  shall  grant  an  order  for 
the  appointment  of  a  receiver  of  thepropertv  of  the  judg- 
ment debtor,  the  same  shall  be  filed  in  the  "office  of  the 
clerk  of  the  superior  court  of  the  county  where  the  judg- 
ment roll  in  the  action  or  transcript  from  justice's  judg- 
ment, upon  which  the  proceedings  are  taken,  isfiled;  and 
the  clerk  shall  record  the  order  in  a  book  to  be  kept  for 
that  purpose  in  his  office,  to  be  called  "book  of  orders, 
appointing  receivers  of  judgment  debtors,"  and  shall 
note  the  time  of  the  filing  of  said  order  therein.  A  cer- 
tified copy  of  said  order  shall  be  delivered  to  tlie  receiver 
named  therein,  and  he  shall  be  vested  with  the  property 
and  effects  of  the  judgment  debtor  from  the  time  of  the 
service  of  the  restraining  order,  if  such  restraining  order 
shall  have  been  made,  and  if  not,  from  the  time  of  the 
filing  and  recording  of  the  order  for  the  appointment  of 
a  receiver.  The  receiver  of  the  judgment  debtor  shall 
be  subject  to  the  direction  and  control  of  the  court  in 


k 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  193 

which  the  judgment  was  obtained  upon  which  the   pro- 
ceedings are  founded. 

Rankin  v.  Minor,  72—424;  EigbtonT.  Pruden,  73—61;  Rand  v.  Rand,  78 
—12;  Corbin  V.  Berry,  83—27;  Bronson  v.  Ins.  Co.,  85—411. 

Sec.  496.  Order  to  be  filed  in  the  office  of  what  clerk,  toe- 
fore  vested  with  real  property.    C.  C.  P.,  s.  270. 

But  before  the  receivei-  shall  be  vested  with  any  real 
property  of  such  judgment  debtor,  a  certified  copy  of  said 
order  shall  also  be  filed  and  recorded  on  the  execution 
docket,  in  the  office  of  the  clerk  of  the  superior  court  of 
the  county  in  which  any  real  estate  of  such  judgment 
debtor  sought  to  be  affected  by  such  order  is  situated,  and 
also  in  tlie  office  of  the  clerk  of  the  superior  court  of  the 
county  in  which  such  judgment  debtor  resides. 

Bronson  v.  Ins.  Co.,  85 — 411. 

Sec.  497.  Property  claimed  toy  a  third  party,  or  detot  de- 
nied, receiver  to  toring  action,  and  in  meantime  trans- 
fer or  payment  forbidden.  C.  C.  P.,  s.  271.  1870-'71, 
c.  245,  s.  1. 

If  it  appear  that  a  person  or  corporation  alleged  to  have 
property  of  the  judgment  debtor,  or  indebted  to  him, 
claims  an  interest  in  the  property  adverse  to  him,  or  de- 
nies the  debt,  such  interest  or  debt  shall  be  recoverable 
only  in  an  action  against  such  person  or  corporation  by 
the  receiver;  but  the  com't  or  judge  may,  by  order, 
forbid  a  transfer  or  other  disposition  of  such  property  or 
interest,  till  a  sufficient  opportunity  be  given  to  the  re- 
ceiver to  commence  the  action,  and  prosecute  the  same 
to  judgment  and  execution,  but  such  order  may  be  modi- 
fied or  dissolved  by  the  court  or  judge  having  jurisdiction, 
at  any  time,  on  such  security  as  he  shall  direct. 

Williams  v.  Green,  68—183;  Bronson  v.  Ins.  Co.,  85 — 411. 

Sec.  498.  Judge  may  order  a  reference,  to  report  the  evi- 
dence or  facts.    C.  C.  P.,  s.  272. 

The  court  or  judge  may,  in  his  discretion,  order  a  refer- 
ence to  a  referee  agreed  upon  by  the  parties,  or  appointed 
by  him,  to  report  the  evidence  or  the  facts,  and  may,  m 
his  discretion,  appoint  such  referee  in  the  first  order,  or 
at  any  time. 

Hasty  V.  Simpson.  77—69;  Bronson  v.  Ins.  Co.,  85 — 411. 

Sec.  499.    Costs  to  be  allowed.    C.  C.  P.,  s.  273. 

The  court  or  judge  may  allow  to  the  judgment  creditor, 
8 


194 


CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 


or  to  any  party  so  examined,  whether  a  party  to  the  action 
or  not,  witnesses'  fees  and  disbursements. 

Bronsoa  v.  Ins.  Co.,  85 — 411. 

Sec.  500.    Disobedience  to  order;  punishment.     C.  C.  P., 
s.  274.     lSG9-'70,  c.  79,  s.  3. 

If  any  person,  party,  or  witness,  disobey  an  order  of 
the  court  or  judge  or  referee,  duly  served,  such  person, 
pai'ty  or  witness,  may  be  punished  by  the  judge  as  for  a 
contempt.  And  in  all  cases  of  commitment  under  this 
sub-chapter,  the  person  committed  may,  in  case  of 
inability  to  perform  the  act  requii-ed,  or  to  endure  the 
imprisonment,  be  discharged  from  imprisonment  by  the 
judge  committing  him,  or  the  judge  having  jurisdiction, 
on  such  terms  as  may  be  just. 

Parks  V.  Sprinkle,  64— G37;  Bond  v.  Bond,  69—97;  Justice  v.  Bank, 
83 — 8;  Ethcridge  v.  Woodley,  83 — 11;  La  Fountain  v.  Soutliern  Under- 
writers, 83—132;  Bronson  v.  Ins.  Co.,  85 — 411. 


CHAPTER  FOUR. 

PEOPEETY  EXEMPT  FEOM  EXECUTION,  AND  PEO- 
OEEDINGS  TO  LAY  OEF  THE  SAME. 


Section. 

601.  Exemptions  from  sale  under  ex- 
ecution in  force  at  Ibe  time 
the  debt  was  contracted,  or 
cause  of  action  arose,  are  to 
be  set  apart. 

502.  Sheriff  to  summon  appraisers. 

503.  Duty  of  appraisers. 

604.  Appraisers  to  make  return. 

505.  Levy  to  be  made  on  the  excess. 

506.  No  election;  appraisers  to  elect. 

507.  Personal    property,     how    ap- 

praised;   how    return    to    be 
made. 

508.  Appraisers  to  take  an  oath ;  fees 

of. 
609.  Tracts  not  contiguous,  may  be 
included  in  homestead. 


Section. 

510.  Costs,  how  taxed  and  by  whom 

paid. 

511.  Homestead  and  personal   prop- 

erty exemption  may  be  sot  off 
upon  petition. 

512.  Assessors  to  set  apart  personal 

property,  and  return  the  same 
to  register  of  deeds. 

513.  Register  to  endorse  on  return 

the    date,    and    register    the 
same. 

514.  When  persons  die,  homestead 

not  set  apart,  who  may  have 
the  same  set  ajiart. 

515.  IIow  petition  is  to  be  filed,  and 

adverliscnicnt  made. 

516.  Liability  of  officer  making  levy. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE. 


195 


Section. 

refusing  or  neglecting  to  lay 
off  homestead. 

617.  Liabilitj'  of  officer,  appraiser  or 
assessor  conspiring  with  debt- 
or. 

518.  Liability  of  officer,  appraiser  or 

assessor  conspiring  with  cred- 
itor. 

519.  Judgment  creditor  dissatisfied, 

how  to  proceed. 


Section. 

520.  When  exemption  made  or  al- 

lotted on   petilion;    objection 
thereto,  how  to  be  made. 

521.  Cost  of  re-assessment,  how  paid. 
523.  Undertaking  of  objector. 

523.  Appraisal  or  assessment  may  be 

set  aside  for  what. 

524.  Return  to  be  registered— forms. 


Sec.  501.  Exemptions  from  sale  under  execution  in  force 
at  the  time  tlie  debt  was  contracted,  or  cause  of  action 
arose,  are  to  be  set  apart.    1879,  c.  250,  s.  1. 

There  shall  be  exempt  from  sale  under  execution  or 
other  final  process  issued  for  the  collection  of  any  debt 
upon  all  judgments  heretofore,  or  which  may  be  here- 
after rendered,  such  property  as  the  judgment,  debtor 
may  have  been  entitled  to  have  set  apart  and  allotted  to 
him  at  the  time  the  debt  was  contracted,  ot  cause  of 
action  accrued,  as  follows: 

Earle  V.  Hardie,  80— 177;  Carlton  v.  "Watts,  83—212;  Grant  v.  Hughes, 
83—216;  Walkins  v.  Overley,  83—165;  Lamb  v.  Chamness,  84—379;  Dail 
V.  Sugg,  85—104;  Leach  v.  Jones,  80—404. 


B.  C,  c.  45,  s.  7.    1848,  c.  38,  s.  1. 

(1)  UPON  DEBTS  CONTRACTED  PRIOR  TO  FEBRUARY  TWENTY- 
FIFTH,    ONE    THOUSAND    EIGHT    HUNDRED    AND    SIXi'Y- 

SEVEN. 

The  wearing  apparel,  working  tools,  arms  for  muster, 
one  wheel  and  two  pairs  of  cards,  one  loom,  one  Bible 
and  testament,  one  hymn-book,  one  prayer-book,  and  aU 
necessary  school  books,  the  property  of  the  defendant, 
shall  be  exempt  from  seizure  under  execution,  and 

Henson  v.  Edwards,  10  Ired.,  43;  Abrams  v.  Pender,  Busb.,  260. 

K.  C,  c.  45,  s.  8,    1844,  c.  33.    1840,  c.  53.    1848,  c.  38, 
s.  8. 

In  addition  to  the  foregoing  articles  there  shall  be,  in 
favor  of  every  housekeeper  complying  with  this  chapter, 
exempt  from  execution  on  debts  contracted  since  the  first 
day  of  July,  one  thousand  eight  hundred  and  forty -five, 
and  prior  to  February  twenty-fifth  daj"-,  one  thousand 
eight  hundred  and  sixty-seven,  the  following  property, 


19C  CODE  OF  CIM:L  PROCEDURE.     [Chap.  10. 

provided  the  same  shall  have  been  set  apart  before  seizure, 
to  wit:  one  cow  and  calf,  ten  bushels  of  corn  or  wheat, 
fifty  pounds  of  bacon,  beef,  or  pork,  or  one  barrel  of  fisli, 
all  necessary  farming  tools  for  one  laborer,  one  bed,  bed- 
stead, and  covering  for  every  two  members  of  the  family, 
and  such  other  property  as  the  freeholders  appointed  for 
that  purpose  may  deem  necessary  for  the  comfort  and  sup- 
port of  such  debtor's  family;  such  other  property  not  to 
exceed  in  value  the  sum  of  fifty  dollars  at  cash  valuation: 
Provided,  that  this  section  shall  not  be  extended  to  any 
person,  against  whom  judgment  is  obtained  and  execu- 
tion awarded  for  liability  incurred  for  failure  or  neglect 
to  work  on  the  public  roads,  or  to  muster-,  or  pay  his 
poll  tax. 

Ballard  v.  Waller,  7  Jon.,  84;  Massey  v.  WaiTen,  7  Jon.,  143;  Lloyd  v. 
Durham,  Vvinst.,  288;  Weaver  v.  Parker,  1  Phil.,  479;  Carlton  v.  Walts,  83 
—212;  Grant  v.  Hughes,  82—216. 


1866-'7,  c.  61,  s.  7.    1879,  c.  256,  s.  1. 

(2)  DEBTS  CONTRACTED  SINCE  FEBRUARY  TWENTY-FIFTH, 
ONE  THOUSAND  EIGHT  HUNDRED  AND  SIXTY  SEVEN,  AND 
PRIOR  TO  APRIL  TWENTY- FOURTH,  ONE  THOUSAND  EIGHT 
HUNDRED  AND  SIXTY-EIGHT. 

The  wearing  apparel,  working  tools,  arms  for  muster, 
one  wheel  and  two  pair  of  cards,  one  loom,  one  Bible 
and  testament,  one  hyinn-book,  one  prayer-book,  and  all 
necessary  school  books,  the  property  of  the  defendant, 
shall  be  exempt  from  seizui'e  under  execution.  And  the 
following  property  of  each  head  of  a  family  or  house- 
keeper shall  be  exempt  from  execution  except  for  taxes: 
All  necessary  farming  and  mechanical  tools,  one  work 
horse,  one  yoke  of  oxen,  one  cart  or  wagon,  one  milch 
cow  and  calf,  fifteen  head  of  hogs,  five  hundred  pounds 
of  pork  or  bacon,  fifty  bushels  of  corn,  twenty  bushels  of 
wheat  or  rice,  household  and  kitchen  furniture  not  to 
exceed  in  value  two  hundred  dollars,  the  libraries  of 
licensed  attorneys  at  law,  practicing  physicians  and 
ministers  of  the  gospel,  and  the  instruments  of  surgeons 
and  dentists  used  in  their  professions:  Provided,  that  the 
value  of  the  personal  property  exemptions  shall  not  ex- 
ceed five  hundred  dollars. 

Carlton  v.  Watts,  82—212;  Graut  v.  nnjslies,  82—210. 


I 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDUKE.  197 

(3)  UPON  I.EBTS   CONTRACTED   AND  CAUSES   OF  ACTIONS  AC- 

^^     CRUED  SINCE  APRIL  THE  TWENTY-FOURTH,    ONE  THOU" 

sISd    EIGHT    HUNDRED    AND   SIXTY-EIGHT,    AND  PRIOR 

TO    MAY  FIRST,    ONE    THOUSAND    EIGHT  HUNDRED   ANT) 

SEVENTY-SEVEN. 

The  property,  real  and  personal,  as  set  forth  in  article 
ten  of  the  constitution  of  the  state. 

Hill  V  Kessler,  63-437;  McKeithan  v.  Terry.  64-25;  Horton  v.  McCall, 
66-159;'  Ladd  v.  Adanas,  66-164;  Johnson  v.  Cross,  66-167;  Walls  v. 
Lee-elt  66-197;  Dellinger  v.  Tweed,  66-206;  Burnes  v.  Hams  67-140. 
Martin  V.  Hughes.  67-293;  Barrett  v.  Richardson,  76-429;  Adnau  v. 
Shaw  82-474;  Watkins  v.  Overby,  83-165;  Simpson  v.  Wallace,  83-447. 
Lamb  V.  Chamness.  84-379;  Smith  v.  High,  85-93;  ^vche  v^Wyche. 
85-96;  Foxv.  Cline,  85-173;  McDonald  v.  DicUson,  85-248;  Cotton  v. 
McClenahan,  85-254;  Grant  v.  Edwards,  86-513;  '^-'l';- E1--ds^  8  -JJ^ 
Murchison  v.  Plvler,  87-79;  Cummings  v.  Bloodworth.  87-83,  Burton  v. 
Spiers,  87-87;  Wilson  v.  Patten,  87-318;  Butler  v.  Stamback,  8—U6. 

1876-'7,  c.  353,  s.  1. 

m  UPON  DEBTS  CONTRACTED  OR  CAUSES  OF  ACTION  AC" 
CRUING  SINCE  MAY  FIRST,  ONE  THOUSAND  EIGHT  HUN- 
DRED  AND   SEVENTY-SEVEN. 

The  property,  real  and  personal,  specifiedin  subdivision 
three  of  this  section,  and  the  homestead  of  any  resident 
of  this  state  shall  not  be  subject  to  the  hen  of  any  .ludg- 
ment  or  decree  of  any  court,  or  to  sale  under  execution 
or  other  process  thereon,  except  such  as  may  be  rendered 
or  Lsued'^to  secure  the  payment  of  obligations  coutraced 
for  the  purchase  of  the  said  real  estate,  or  for  laborers  or 
mechanics'  liens,  for  work  done  and  performed  for  the 
claimant  of  said  homestead,  or  for  lawful  taxes. 

Whitaker  v.  Elliott,  73-186  ;  Brodie  v.  Balchelor,  75-J.l;  Bank  v. 
Green  78-247;  Gamble  v.  Watterson,  83-573;  Smith  v.  High,  85-93; 
McDonald  v.  Dickson,  85-248;  Gregory  v.  Ellis,  86-579;  Cummmgs  v 
Bloodworth,  87-83;  Wharton  vs.  Taylor,  to  appear  in  88  JN.  O.  K. 

Sec.  502.  Sheriff  to  summou  appraisers.    1868-'9,  c.  137, 

Before  levying  upon  the  real  estate  of  any  resident 
of  tWs  statJ,  who  is  entitled  to  a  homestead  under 
Sis  chapter,  and  the  constitution  of  this  state  article 
ten,  the^heriff  or  other  officer  charged  w^th  such 
levy,  shall  summon  three  discreet  persons  q^hfied  to  act 
as  lurors,  to  whom  he  shall  administer  the  folio  mug 
oath-  "I  A  B.,  do  solemnly  swear  (or  athrm)  tliat  i 
have  no  interest,  near  or  remote,  in  the  homestead  ex- 
emption of  C.  D.;  and  that  I  will  faithfuUy  perform  the 


198  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

duties  of  appraiser  (or  assessor,  as  the  case  may  be),  in 
valuing  and  laying  off  the  same.     So  help  me,  God." 

Lute  V.  Reilly,  65—20;  Coble  v.  '1  hom.,  73—131 ;  Whitaker  v.  Elliott,  73 
—186;  Chambers  v.  Penland,  74^-340;  Lambert  v.  Kinnery,  74—348;  Little- 
john  V.  Eserton,  77—379;  Grant  v.  Edwards,  86—513;  Burton  v.  Spiers, 

87—87. 

Sec.  503.  Duty  of  appraisers.    1868-'9,  c.  137,  s.  3. 

The  said  appraisers  shall  thereupon  proceed  to  value 
the  homestead,  with  its  dwelling  and  buildings  thereon, 
and  lay  off  to  said  owner  such  portion  as  he  may  select, 
or  to  any  agent,  attorney,  or  other  person  in  his  behalf, 
not  exceeding  in  value  one  thousand  dollars,  and  to  fix 
and  describe  the  same  by  metes  and  bounds. 

Lambert  v.  Kinnery,  74—348;  Hoskins  v.  Wall,  77—249;  Littlejohn  v. 
Egerton,  77—379. 


Sec.  504.  Appraisers  to  make  return.     1868-'9,  c.  137, 

s.  4. 

They  shall  then  make  and  sign  in  the  presence  of  the 
officer  a  return  of  their  proceedings,  setting  forth  the 
property  exempted,  which  shall  be  returned  by  the  officer 
to  the  clei'k  of  the  court  for  the  county  in  which  the 
homestead  is  situated  and  filed  with  the  judgment  roll  in 
the  action,  and  a  minute  of  the  same  entered  on  the 
judgment  docket,  and  a  certified  copy  thereof  under  the 
hand  of  the  clerk  shall  be  registered  in  the  office  of  the 
register  of  deeds  for  the  county,  and  in  all  judicial  pro- 
ceedings the  original  return  or  a  certified  copy  thereof 
may  be  read  in  evidence. 
Burton  v.  Spiers,  87—87. 

Sec.  505.  Levy  to  be  made  on  the  excess.    1868-'9,    c. 
137,  s.  5. 

The  levy  may  be  made  upon  the  excess  of  the  home- 
stead, not  laid  off  according  this  chapter,  and  the  officer 
shall  make  substantially  the  follovving  return  upon  the 
execution:  "'A.  B.,  C.  D.,  and  E.  F.,  summoned  and 
qualified  as  appraisers  or  assessors,  (as  the  case  may  be,) 
who  set  off  to  X.  Y.,  the  homestead  exempt  by  law. 
Levy  made  upon  the  excess." 

Scott  v.  WaUon,  67—109;  Andrews  v.  Pritchett,  73—135;  Edwards  v. 
Kenrsey,  74—341;  Lambert  v.  Kinnery,  74—348;  Waters  v.  Slubbs,  75—28; 
Brodie  v.  Batchelor.  75 — 51;  Burton  v.  Spiers,  87 — 87. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  199 

Sec.  506.  No  election;   appraisers  to  elect.    1868-'9,  c. 
137,  s.  6.  ,  •  i 

In  case  no  election  is  made  by  the  owner  Ins  agent, 
attorney,  or  any  one  acting  in  his  behalf,  of  the  horae- 
stead.to  be  laid  off  as  exempt,  the  appraisers  shall  make 
such  election  for  him,  including  always  the  dwellmg  and 
buildings  used  therewith. 

Burton  v.  Spiers,  87—87. 
Sec    507.  Personal  property,  how  appraised;  how  return 
to  be  made.     1808-'9,  c.  137,  ss.  12,  13. 

Whenever  the  personal  property  of  any  resident  ot  this 
state  stiall  be  levied  upon  by  virtue  of  any  execution  or 
other  final  process  issued  for  the  collection  of  any  debt 
and  the  ow'ner  or  anv  agent,  or  attorney  in  his  behal 
shall  demand  that  the  same,  or  any  part  thereof,  shall 
be  exempt  from  sale  under  such  execution,  the  sheriff  or 
other  officer  making  such  levy,  shall  summon   hree  ap- 
praisers, as  heretofore  provided,  who   having  been  first 
duly  sworn,  shall  appraise  and  lay  off  to  the  judgment 
debtor  such  articles  of  personal  property  as  he,  or  another 
in  his  behalf,  may  select,  and  to  which  he  may  be  en- 
titled under  this  chapter  and  the  constitution  of  the  state 
in  no  case  to  exceed  in  value  five  hundred  dollars,  which 
articles  shall  be  exempt  from  said  levy,  and  return  there- 
of shall  be  made  by  the  appraisers,  as  upon  the  laying  oil 
of  a  homestead  exemption. 

Dcllin-er  v  T^veed,  66-206;  Duval  v.  Rollins,  68-220;  Frost  v.  Naylor, 
68-3-^5  "smith  v.  Hunt,  08-482;  Slate  v.  Carr.  71-106;  Duvall  v.  Rollins, 
71-218;  Curlee  v.  Thomas,  74-51 ;  Com'rs  v.  Riley.  75-144;  Cai'lton  v. 
Watts,  82—212;  Grant  v.  Uuglics,  82—210. 

Sec.  508.    Appraisers  to  take  an  oath;  fees  of.    1868-'9, 
c.  137,s.  14. 
The  persons  summoned  to  appraise  the  personal  property 
exemption  shall  take  the  same  oath  and  be  entitled  to 
the  sime  fees  as  the  appraisers  of  the  homestead,  and 
when  both    exemptions  are  claimed  by  the  judgment 
debtor   at  the  came  time,  one  board  of  appraisers   shall 
lay  off  both  and  be  entitled  to  but  one  fee. 
Sec.  509.  Tracts  not  contiguous  may  he  included  in  home- 
stead.    18«8-'9,c.  137,s.  15. 
Different  tracts  or  parcels  of  land  not  contiguous  may 
be  included  in  the  same  homestead,  when  a  homeste_ad  ot 
contiguous  lands  is  not  of  the  value  of  one  thousand  dol- 

Martin  v.  Hughes,  67-293;  Mayho  v.  Gotten,  69-339. 


200  CODE  OF  CmL  PROCEDURE.     [Chap.  ]0. 

Sec.  610.  Costs,  how  taxed  and  by  whom  paid.    1868-'9, 
c.  137,  s.  16. 

The  costs  and  expenses  of  appraising  and  laying  off  the 
homestead  or  personal  property  exemptions,  when  the 
same  is  made  under  execution,  shall  be  charged  and  in- 
cluded in  the  officer's  bill  of  fees  upon  such  execution  or 
other  final  process;  and  when  made  upon  the  petition  of 
the  owner,  they  shall  be  paid  by  such  owner,  and  the  lat- 
ter costs  shall  be  a  lien  on  said  homestead. 

Sec.  511.  Homestead  and  personal  property  exemption 
may  be  set  off'  upon  petition.     186S-'9,  c.  137,  s.  7. 

Whenever  any  resident  of  this  state  may  desire  to  take 
the  benefit  of  the  homestead  and  personal  property  ex- 
emption as  guaranteed  by  article  ten  of  the  constitution 
of  this  state,  or  by  this  chapter,  such  resident,  his  agent 
or  attorney,  shall  apply  to  any  justice  of  the  peace  of  the 
county  in  which  he  resides,  and  said  justice  of  the  peace 
shall  appoint  as  assessors,  three  disinterested  persons, 
qualified  to  act  as  jurors  residing  in  said  county,  who 
shall,  on  notice  by  order  of  said  justice,  meet  at  the  ap- 
plicant's residence,  and,  after  taking  the  oath  prescribed 
for  appraisers  before  some  officer  authorized  to  adminis- 
ter an  oath,  lay  off  and  allot  to  the  applicant  a  homestead 
with  metes  and  bounds,  according  to  the  applicant's  di- 
rection, not  to  exceed  one  thousand  dollars  in  value,  and 
make  and  sign  a  descriptive  account  of  the  same  and  re- 
turn it  to  the  office  of  the  register  of  deeds. 

Lute  V.  Reilly,  65—20;  Taylor  v.  Rliyne,  65—530;  Vannoy  v.  Haymore, 
71—128;  McAfee  v,  Bettis,  72—28;  Bruce  v.  Strickland.  81—267:  Murchison 
V.  Phyler.  87—79;  Burton  v.  Spiers,  87—87. 

Sec.  512.  Assessors  to  set  apart  personal  property,  and 
return  the  same  to  register  of  deeds.  1868-'9,  c.  137, 
s.  8. 

Said  assessors  shall  set  apart  of  the  personal  property 
of  said  applicant,  to  be  by  him  selected,  articles  of  per- 
sonalty to  which  he  may  be  entitled  under  this  chapter, 
not  exceeding  in  value  the  sum  of  five  hundred  dollars, 
and  make  and  sign  a  descriptive  list  thereof,  and  return 
the  same  to  the  register  of  deeds. 

Sec.  513.  Register  to  indorse  on  return  the  date,  and  reg- 
ister the  same.    1868-'0,  c.  137,  s.  9. 

It  shall  be  the  duty  of  the  register  of  deeds  to  indorse 
on  each  of  said  returns  the  date  when  received  for  regis- 
tration, and  to  cause  the  same  to  be  registered  without 


Chap.  10.1    CODE  OF  CIVIL  PROCEDURE.  201 

unnecessary  delay.  The  said  register  shall  receive  for  reg- 
istering the  said  returns  the  same  fees  that  may  be  allowed 
him  by  law  for  other  similar  or  equivalent  services,  which 
fees  shall  be  paid  by  said  resident  applicant,  his  agent  or 
attorney,  upon  the  reception  of  said  returns  by  the  reg- 
ister. 

Sec.  514.  When  persons  die,  homestead  not  set  apart, 
who  may  have  the  same  set  apart.  1868-'9,  c.  237,  s. 
10.  .         J. 

If  any  person  entitled  to  a  homestead  exemption,  die 
without  having  had  the  same  set  apart,  his  widow,  if  he 
leave  no  children,  or  his  child  or  children  under  the  age 
of  twenty-one  years,  if  he  leave  such,  may  proceed  to 
have  said  homestead  exemption  laid  off  according  to 
sections  five  hundred  and  eleven  and  five  hundred  and 
twelve. 

Johnson  V.  Cross,  66-167;  Wsitts  v.  Leggett,  66-197;  Hager  v.  Nixon, 
69—108:  Allen  v.  Shields,  72—504;  Wharton  v.  Leggett,  80—169;  Simpson 
V.  Wallace,  83—477;  Gregory  v.  Ellis,  86—579. 

Sec.  515.  How  petition  is  to  he  filed  and  advertisement 
made.    186S-'9,  c.  137,  s.  11. 

When  any  person  entitled  to  a  homestead  and  personal 
property  exemption  shall  file  his  or  her  petition  before  a 
lustice  of  the  peace  to  have  the  same  laid  off  and  set 
apart  under  the  four  preceding  sections,  the  said  justice 
shall  make  advertisement  in  some  newspaper  pub- 
lished in  the  county,  if  there  be  one,  for  six  successive 
weeks  and  if  there  be  no  newspaper  in  the  county,  then 
at  the 'court  house  door  of  the  county  in  which  the  peti- 
tion is  filed,  notifying  all  creditors  of  said  apphcant  of 
the  time  and  place,  when  and  Avhere  the  said  petition  will 
be  heard;  and  the  same  shall  not  be  heard  nor  any  decree 
made  in  the  cause  in  less  than  six  months  nor  more  than 
twelve  months,  from  the  dayof  making  advertisement  as 
above  required. 

Sec.  516.  lilahilifcy  of  officer  making  levy,  refusing  or 
neglecting  to  lay  off  homestead.  1868-'9,  c.  137,  s. 
17.  ,     , 

Any  officer  making  a  levy,  who  shall  refuse  or  neglect 
to  summon  and  quaUfy  appraisers  as  heretofore  provided, 
or  who  shall  fail  to  make  due  return  of  their  proceed- 
ings or  who  shall  levy  upon  the  homestead  set  off  by 
said 'appraisers  or  assessors,  (as  the  case  may  be,)  except 
as  herem  provided,  shall  be  liable  to  indictment  for  a  mis- 


202  CODE  OF  CIVIL  PEOCEDUEE.     [Chap.  10. 

demeanor,  and  he  and  his  sureties  shall  be  liable  to  the 
owner  of  said  homestead  for  all  costs  and  damages  in  a 
civil  action. 

State  V.  Carr,  71—106;  Lambert  v.  Kinnery,  74—348;  Richardson  v. 
Wicker,  80—173. 

Sec.  517.  Liability  of  officer,  appraiser  or  assessor  con- 
spiring- with  debtor.     180S-'9,  c.  137.  s.  18. 

Any  officer,  appraiser  or  assessor,  (as  the  case  may  be,) 
who  shall  wilfully  or  corruptly  conspire  with  any  judg- 
ment debtor  or  other  appraiser  or  assessor,  (as  the  case 
may  be,)  to  undervalue  the  homestead  or  personal  prop- 
erty exemption  of  such  debtor,  or  shall  assign  false 
metes  and  bounds,  or  make  or  procure  to  be  made  a  false 
and  fraudulent  veturn  thereof,  shall  be  liable  to  indict- 
ment for  a  misdemeanor,  and  shall  be  answerable  to  the 
judgment  creditor  for  all  costs  and  damages  in  a  civil  ac- 
tion. 

Sec.  518.  Liability  of  officer,  appraiser  or  assessor  con- 
spiring with  creditor.     1808-'9,  c.  137,  s.  19. 

Any  officer,  appraiser  or  assessor  who  shall  wilfully  or 
corruptly  conspire  with  any  judgment  creditor,  or  other 
appraiser  or  assessor,  to  overvalue  the  homestead  or  per- 
sonal property  exemption  of  any  debtor  or  applicant,  or 
shall  assign  false  metes  and  boundaries,  or  make,  or  pro- 
cure to  be  made,  false  and  fraudulent  return  thereof, 
shall  be  liable  to  indictment  for  a  misdemeanor,  and 
shall  be  answerable  to  the  party  injured  for  all  costs  and 
damages  in  a  civil  action. 

Sec.  519.  Judgment  creditor  dissatisfied,  how  to  proceed. 
1883,  c.  357,  s.  1. 

If  the  judgment  creditor  for  whom  levy  is  made,  or 
judgment  debtor  or  other  person  entitled  to  homestead 
and  peisonal  property  exemption,  shall  be  dissatisfied 
with  the  valuation  and  allotment  of  the  appraisers  or 
assessors,  (as  the  case  may  be),  he,  within  ten  days 
thereafter,  or  any  other  creditor,  within  six  months,  and 
before  sale  under  execution  of  the  excess,  may  notify 
the  adverse  party  and  the  sheriff  having  the  execution 
in  hand,  and  file  with  the  clerk  of  the  superior  court  of 
the  county  where  the  said  allotment  shall  he  made  a 
transcript  of  the  return  of  the  appraisers  or  assessors,  (as 
the  case  may  be),  which  they  or  the  sheriff  shall  allow 
to  be  made  upon  demand,  together  with  his  objections  in 
writing  to  said  retui-n;  and  thereupon  the  said  clerk  shall 


I 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  203 

put  the  same  on  the  civil  issue  docket  of  said  superior 
court,  for  trial  at  the  nest  term  thereof  as  other  civil 
actions,  and  such  issue  ioined  shall  have  precedence  over 
all  other  issues  at  such  term.  And  the  sheriff  shall  not 
sell  the  excess  until  after  the  determination  of  said 
action. 

Sec.  520.  Wlien  exemption  made  or  allotted  on  petition; 
objection  thereto,  bow  to  be  made. 

When  the  homestead  or  personal  property  exemption 
is  made  or  allotted  on  the  petition  of  the  person  entitled 
thereto,  any  creditor  may,  within  six  months  from  the 
time  of  said  assessment  or  appraisal,  and  upon  ten  days' 
notice  to  the  petitioner,  file  his  objections  with  the  regis- 
ter of  deeds  of  the  county  in  which  the  premises  are 
situated,  and  the  register  of  deeds  shall  return  the  same 
to  the  clerk  of  the  superior  court  of  said  county,  who 
shall  place  the  same  on  the  civil  issue  docket,  and  the 
same  shall  be  tried  as  provided  in  the  preceding  section 
for  homestead  and  personal  property  exemptions  set  off 
under  execution. 

Sec.  521.  Costs  of  re-assessment,  how  paid. 

If  the  superior  court  at  term  shall  confirm  the  ap- 
praisal or  assessment,  or  shall  increase  the  exemption 
allowed  the  debtor  or  claimant,  the  levy  shall  stand  only 
upon  the  excess  remahiing,  and  the  creditor  shall  pay  all 
the  costs  of  the  proceeding  in  court.  If  the  amount 
allowed  the  debtor  or  claimant  shall  be  reduced,  the  costs 
of  the  proceeding  in  court  shall  be  paid  by  the  debtor  or 
claimant,  and  the  levy  shall  cover  the  excess  then  re- 
maining. 

Sec.  522.  Undertaking  of  objector. 

The  creditor,  debtor,  or  claimant  objecting  to  the  allot- 
ment made  by  the  appraisers  or  assessors  (as  the  case 
may  be)  under  execution  or  petition,  shall  file  with  the 
clerk  of  the  superior  court  an  undertaking  in  the  sum  of 
one  hundred  dollars  for  the  payment  to  the  adverse 
party,  of  such  costs  as  shall  be  adjudged  against  him. 

Sec.  523.  Appraisal  or  assessment  may  be  set  aside,  for 
what. 

Any  appraisal  or  allotment  by  appraisers  or  assessors, 
hereinbefore  provided,  may  be  set  aside  for  fraud,  com- 
phcity  or  other  irregularity;  but  whenever  any  allotment 
or  assessment  shall  be  made  or  confirmed  by  the  superior 


204  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

court  at  term  time,  as  hereinbefore  provided,  the  said 
homestead  shall  not  thereafter  be  set  aside  or  again  laid 
off  by  any  other  creditor. 

Sec.  524.  Keturn  to  be  registered— forms. 

When  the  homestead  and  personal  property  exemption 
shall  be  decided  by  the  court  at  term  time,  the  clerk  of 
the  superior  court  shall  immediately  file  with  the  register 
of  deeds  of  the  county  a  copy  of  tl:e  same,  which  copy 
shall  be  registered  as  deeds  are  now  registered  by  law;  and 
in  all  judicial  proceedings  the  original  or  a  certified  copy 
of  said  return  may  be  introduced  in  evidence. 

The  following  forms  shall  be  substantially  followed  in 
proceedings  under  this  chapter: 


[No.   1.] 
Appraisers'  Return. 

i.  when  the  homestead  is  valued  at  less  than  one 
thousand  dollars,  and  personal  property  also 
appraised. 

The  undersigned  having  been  duly  summoned  and  sworn  to  act  as  ap- 
praisers of  tlie  homestead  and  personal  property  exemption  of  A.  B.,  of 
Township Counly,  by  C.  D. ,  sheriff  (or  consta- 
ble or  deputy,)  of  said  county,  do  hereby  mulie  the  following  return:  We 
have  viewed  and  appraised  the  homestead'of  the  said  A.  B.,  and  thedwelllnsrs 
and  buildings  thereon,  owned  and  occupied  by  said  A.  B.  as  a  homestead, 
to  be  one  thousand  dollars  (or  any  less  sum)  and  that  Ihe  entire  tract! 
bounded  by  the  lands  of and  is  therefore  ex- 
empted from  sale  under  execution  according  to  law.  At  the  same  time 
and  place  we  viewed  and  appraised  at  the  values  annexed,  the  following  arti- 
cles of  personal  property,  selected  l)y  said  A.  B.,  (here  specify  the  articles 
and  their  value,  to  beseleetedbji  the  debtor  or  his  agent,)  wliich  we  dechire  to 
be  a  fair  valuation,  and  that  the  said  articles  are  exempt  under  said  execu- 
tion. We  hereby  certify  that  we  are  not  related  by  blood  or  marriage  to 
the  judgment  debtor  or  the  judgment  creditor  in  this  execution,  and  have 
no  interest,  near  or  remote,  in  the  above  exemptions. 

Given  under  our  hands  and  seals,  this day  of 18 

O.  K ,  (i'k) 

L.  M ,  (L.  8.) 

R.  S (£,  S.) 

The  above  return  was  made  and  subscribed  in  my  presence,  day  and  date 
above  given. 

CD (Sheriff  or  Constable.) 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDUEE.  205 

[No.  2.] 

n      PETITION     FOR     HOMESTEAD     BEFOEE     A     JUSTICE     OF 
THE  PEACE. 

Before J-  ^• 


In  the  matter  of  A.  B.  V  County. 

"a  B  respectfully  shows  that  he  (she  or  they,  as  the  case  may  be,)  is  (or 
ar^  entitled  to  a  homeslead  exempt  from  execution  in  certam  real  estate  m 
safd  county  and  bounded  and  described  as  follows:  {Here  describe  the  prop- 
eftv  rThe'tme  value  of  which  he  (she  or  they,  as  the  case  may  Je.)  believes 
to  be  one  thousand  dollars,  including  the  dwelling  and  buildings  thereon. 
He  (she'"  hey)  further  shows  that  he  (she  or  they  as  the  case  may  be. Us 
to- •re\  entitled  to  a  personal  property  exemption  from  execution,  to  the 
Z\Z  of  Tre  Stat  the  value)  cLsLins  of  the  following  property:  {Here 
sve^^fv)  He  (she  or  they,  as  the  case  may  be.)  therefore  prays  your  worship 
to  appoint  three  disinterested  persons  qualified  to  act  as  jurors,  as  assessors 
to  vLw  the  premises,  allot  and  set  apart  to  your  petitioner  his  homestead 
and  personal  properly  exemption,  and  report  according  to  law. 

[No.  3.] 

m      FORM  FOR  APPRAISAL   OF  PERSONAL   PROPERTY 

EXEMPTION. 

The  undersisrned  having  been  duly  summoned  and  sworn  to   act  as  ap- 

Tiraisers  of  the  personal  property  of  A.  B.,  of Township,. . . ... ... 

bounty    and  to  lay  off  the  exemption  given  by  law   thereto    by  C.  D 
{iS or  other  officer,)  of  B-Mcouniy.  do  hereby  make  and  subscribe  the 

^°Wri'ifwcd''and  appraised  at  the  values  annexed  the  following  articles  of 
personal  property  selected  by  the  said  A.^  B..  to  wit^.^  .^.^  .^.  ^^^^.  .^.^. -^ 

aYairvaiuation''and"that  said 'articles  are  exempt  under  said  execution 

We  hereby  certify,  each  for  himself,  that  we  are  not  related  by  blood  or 
mSe  to  the  iudgment  debtor  or  judgment  creditor  in  this  execution, 
and  have  no  interest,  near  or  remote,  in  the  above  exemptions. 

Given  under  our  hands  and  seals,  this day  ot. . .  .^. . . .,  ro. . .  .^ 

i:.M.'.'.'.'.'.'.{L.S.) 

R.  S {L.S.) 

The  above  return  was  made  and  subscribed  in  my  presence,  day  and  date 
above  given.  ^^ (Sheriff  or  Constable.) 

[No.    4.] 

IV     CERTIFICATE    OF    QUALIFICATION  TO    BE    INDORSED    ON 
RETURN  BY   SHERIFF. 

The  within  named  B.  F.,  G.  H.  and  J.  R.  were  summoned  and  qualified 
according  ,0  law,  as  appraisers  of  the  ..... . .  exemption  of  the  said 

A.  B.,  under  an  execution  in  favor  of  X.  Y .,  this u,i\  oi 

18-'"  C.  D (Sheriff.) 


206 


CODE  OF  CIVIL  PROCEDURE.    [Chap.  10. 

[No.  5.] 
V.    SHNUTE  ON  EXECUTION  DOCKET. 

} 


Execution  issued ,  18.. 

Homestead  appraised  and  set  off  and  return  made ,  18. 


TITLE  XII. 


OF  THE  COSTS  IN  CIVIL  ACTIONS. 


Section. 

525.  "When  allowed  of  course  to  the 

plaintiff ;  several  actions  on  one 

instrument. 
626.  Wben  allowed  to  defendant. 
527.  When  allowed  to  either  party  in 

the  discretion  of  the  court. 
538.  'What  costs  allowed. 

529.  Interest,  when  allowed. 

530.  Interest    on    contracts,    except 

penal  bonds,  and  on  all  judg- 
ments; jury  to  distinguish 
principal  from  interest. 

631.  In  judgments  fjual  by  default, 
interest  ascertained  by  clerk. 

532.  Costs,  how  to  be  inserted  in 
judgment;  interlocutory  costs 
adjusted. 

633.  Referee's  fees. 

534.  Costs  against  infant  plaintiff. 

635.  Costs  in  action  by  or  against  an 


Section. 

executor  or  administrator,  trus- 
tee of  an  express  trust,  or 
person  expressly  authorized  by 
statute  to  sue. 

536.  Costs  in  civil  actions   by  the 

state. 

537.  Costs  in  action  by  the  state  for 

a  private  person. 

538.  Costs  in  appeals  by  state  to  the 

Supreme  Court  of  the  United 
States. 

539.  Costs  against  assignee  after  ac- 

tion brought. 

540.  Costs  on  appeals  generally. 

541.  Costs  in  special  proceedings. 

542.  Costs  on  appeals  from  justices 

of  the  peace. 

543.  Judnmeut    for    costs    against 

plaintiff  and  sureties  on  failure 
to  maintain  action. 


Sec.  525.  When  allowed  of  course  to  the  plaintlflF;  several 
actions  on  one  instrument.    C.  C.  P.,  s.  276. 

Costs  shall  be  allowed  of  course  to  the  plaintiff,  upon  a 
recovery,  in  the  following  cases: 

(1)  In  an  action  for  the  recovery  of  real  property,  or 
when  a  claim  of  title  to  real  property  arises  on  the  plead- 
ings, or  is  certified  by  the  court  to  have  come  in  question 
at  the  trial; 


I 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  207 

(2)  In  an  action  to  recover  the  possession  of  personal 
^TaTin^  actions  of  which  a  coui-t  of  a  justice  of  the 
peace  has  no  jurisdiction; 

bona;recORniza,>ce,  pvom.|,wy  note    b,n^o^^ 

SI  sfl"S  r  sec?:terr4e 'ootrncl'^nt  0.  t.e 
previous  aotion  or  ac"OT5.  ,,„„„ , 

Porter  v.   Durham,  79-596;  Vestal  v.  Sloan,  83-5o5,  il.  u.,  c 

Hartman  v.  Spiers,  87—28. 

Sec    526.  When  aUowed  to  defendant.     C.C.  P.,  s-  377. 

plaintiff  be  entitled  to  costs  therein. 

Swain  V.  McCuUock,  75-195;  Wall  v.  Covington,  <6-150. 
Sec  537.  When  allowed  to  either  party  in  the  discretion 

i:X;r;;;ns:c'o'sS'  mfy't;  aHowed  or  not,  in  the 
A-  .^illn  nfihe  court  In  all  actions  where  there  are 
srveSdefldaStsTot  united  in  i-terest  and  rnaknig 
separate  defences  by  separate  answers  ^J^^  ^l^^^^^^^^^*^^ 

is^-ts^^^^^aSr^ou^----^-- 

tion  of  the  court:  a^..^a. 

(1^  When  a  new  trial  shall  be  ordered,        _ 

(2)  When  a  judgment  shaU  be  affirmed  in  part,  and 
'  Mu":?  !^Sison.  63-643;  Sed.erry  v.  Con.'rs,  66-486,  Jones  v 
Mial,  85—597. 


208  CODE  OF  CIVIL  PEOCEDUEE.     [Chap   10. 

Sec.  538.  What  costs  allowed.    C.  C.  P.,  s.  379. 

To  either  party  for  whom  judgment  shall  be  given 
there  shall  be  allowed  as  costs  his  actual  disbursements 
for  fees  to  the  officers,  witnesses,  and  other  persons  enti- 
tled to  receive  the  same. 

Sec.  539.  luterest,  wlieu  allowed.     C.  C.  P.,  s.  383. 

When  the  judgment  is  for  the  recovery  of  money,  in- 
terest from  the  time  of  the  verdict  or  report  until  judg- 
ment be  finally  entered  shall  be  computed  by  the  clerk 
and  added  to  the  costs  of  the  party  entitled  thereto. 

Sec.  530.  Interest  on  contracts,  except  penal  bonds,  and  on 
all  Judgments  ;  .jury  to  distingiiisli  principal  from  in- 
terest. K.  C,  c.  31,  s.  90.  1786,  c.  353,  s.  1.  1789, 
c.  314,  s.  4.    1807,  c.  731. 

AH  sums  of  money  due  by  contract  of  any  kind  what- 
soever, excepting  money  due  on  penal  bonds,  shall  bear 
interest,  and  when  a  jmy  shall  render  a  verdict  therefor 
they  shall  distinguish  ithe  principal  from  the  sum  allowed 
as  interest;  and  the  principal  sum  due  on  all  such  con- 
tracts shall  bear  interest  from  the  time  of  rendering 
judgment  thereon  until  it  be  paid  and  satisfied.  In  like 
manner,  the  amount  of  any  judgment  or  decree,  except 
the  costs,  rendered  or  adjudged  in  any  kind  of  action, 
though  not  on  contract,  shall  bear  interest  till  paid,  and 
the  judgment  and  deci'ee  of  the  court  shall  be  rendered 
accoi'ding  to  this  section. 

Deloach  v.  Worke,  3  Hawks,  3G.  Trice  v.  Turrentine,  13  Irod.,  212;  Hall 
V.  Ciaige,  68— oOu;  Barlow  v.  Nurflect,  72 — 535;  Farmer  v.  Willard,  75 — 
401;  Wall  V.  Covington,  83 — 144;  Long  v.  Long,  85 — 415;  Patapsco  v. 
Magee,  86—350;  Jolly  v.  Bryan,  86—457;  McRae  v.  Malloy,  87—196. 

Sec.  531.  In  judgments  final  by  default,  interest  ascer- 
tained by  clerk.    K.  C,  c.  31,  s.  91.  1797,  c.  475,  s.  1. 

Whenever  a  suit  shall  he  instituted  on  a  single  bond,  a 
covenant  for  the  payment  of  money,  bill  of  exchange. 
■  promissory  note,  or  a  signed  account,  and  the  defendant 
shall  not  plead  to  issue  thereon,  upon  judgment,  the  clerk 
of  the  court  shall  ascertain  the  interest  due  by  law,  with- 
out a  wi'it  of  inquiry,  and  the  amount  shall  be  included 
in  the  final  judgment  of  the  court  as  damages,  which 
judgment  shall  be  rendered  therein  in  the  manner  pre- 
scribed by  the  preceding  section. 

Hartsfield  v.  Jones,  4  Jon.,  S09;  GrifBn  v.  Hinson,  6  Jon.,  154;  Moore  v. 
Mitchell,  Phil.,  304;  Parker  v.  Smith,  64^291;  Rogers  v.  Moore,  80—85. 


I 


Chap.  10.]    CODE  OF  CIVIL  PROCEDUEE.  '209 

Sec.  532.  Costs,  how  to  be  inserted  in  judgment;  inter- 
locutory costs  adjusted.  C.  C.  P.,  s.  283.  1 869-' 70.  c. 
192. 

The  clerk  shall  insert  in  the  entry  of  judgment  the  sum 
of  the  allowances  for  cost,  as  provided  in  this  code,  the 
necessary  disbursements,  including  the  fees  of  officers 
allowed  by  law,  the  fees  of  witnesses,  the  reasonable 
compensation  of  commissioners  in  taking  depositions,  the 
fees  of  referees.  The  disbursements  shall  be  stated  in 
detail  Whenever  it  shall  be  necessary  to  adjust  costs  in 
any  interlocutory  proceedings,  or  in  any  special  proceed- 
in4  the  same  shall  be  adjusted  by  the  clerk  of  the  court 
to  which  the  proceedings  were  returned,  except  m  those 
matters  in  which  the  aUowance  is  required  and  to  be 
made  by  the  judge. 

Sec.  533.  Referee's  fees.    C.  C.  P.,  s.  285. 

The  fees  of  a  referee  shall  be  fixed  by  the  court  or 
judge,  unless  the  parties  themselves  shall  agree  upon  a 
rate  of  compensation. 

Wall  V.  Covington,  76 — 150. 

Sec.  534.  Costs  against  infant  plaintiff.    C.  C.  P.,  s.  286. 

When  costs  are  adjudged  against  an  infant  plaintiff, 
the  guardian  by  whom  he  appeared  in  the  action  shall  be 
responsible  therefor. 

Sec.  535.  Costs  in  action  toy  or  against  an  executor  or  ad- 
ministrator, trustee  of  an  express  trust,  or  a  person  ex- 
pressly authorized  toy  statute  to  sue.    C.  C.  P.,  s.  287. 

(1)  In  an  action  prosecuted  or  defended  by  an  execu- 
tor, administrator,  trustee  of  an  express  trust,  or  a  per- 
son expressly  authorized  by  statute,  costs  shall  be  recov- 
ered as  in  an  action  by  and  against  a  person  prosecuting 
or  defending  in  his  own  right;  but  such  costs  shall  be 
chargeable  only  upon  or  collected  out  of  the  estate,  fund 
or  party  represented,  unless  the  court  shall  direct  the 
same  to  be  paid  by  the  plaintiff  or  defendant,  person- 
ally, for  mismanagement  or  bad  faith  in  such  action  or 
defence. 

Lewis  V.  Johnston,  67—38;  Lewis  v.  Johnston,  69—393;  Wall  v.  Coving- 
ton, 76—150;  Hewlett  V.  Nutt,  79—263. 

(2)  And  whenever  any  claim  against  a  deceased  person 
shall  be  referred,  the  prevailing  party  shall  be  entitled  to 
recover  the  fees  of  referees  and  witnesses,  and  other  nec- 
essary disbursements,  to  be  taxed  according  to  law. 

Wall  V.  Covington,  76—150;  sections  276,  277,  343,  C.  C.  P. 


210  CODE  OF  CIVIL  PEOCEDURE.     [Chap.  10. 

Sec.  536,  Costs  in  civil  actions  by  the  State.  C.  C.  P..  s. 
288. 

In  all  civil  actions  prosecuted  in  the  name  of  the  state, 
by  an  officer  duly  authorized  for  that  purpose,  the  state 
shall  be  liable  for  costs  in  the  same  cases  and  to  the  same 
extent  as  private  parties.  If  a  private  person  be  joined 
with  the  state  as  plaintiff,  he  shall  be  liable  in  the  first 
instance  for  the  defendant's  costs,  which  shall  not  be  i-e- 
covered  of  the  state  tiU  after  execution  issued  therefor 
against  such  private  party  and  returned  unsatisfied. 

State  V.  R.  R.  Co.,  74—287. 
Sec.  537.  Costs  in  action  by  the  State  for  a  private  person. 

c.  c.  P.,  s.  aso. 

In  an  action  prosecuted  in  the  name  of  the  state  for  the 
recovery  of  money  or  property,  or  to  establish  a  right  or 
claim  for  the  benefit  of  any  county,  city,  town,  village 
corporation  or  person,  costs  awarded  against  the  plain- 
tiff shall  be  a  charge  against  the  party  for  whose  benefit 
the  action  was  prosecuted,  and  not  against  the  state. 

Sec.  538.  Costs  in  appeals  by  State  to  the  Supreme 
Court  of  the  United  States.  C.  C.  P.,  s.  289  (a) 
1871-'2,  c.  20,  s.  1. 

In  all  cases,  whether  civil  or  criminal,  to  which  the 
state  of  North  Carolina  is  a  party,  and  which  may  be 
cariied  from  the  courts  of  this  state,  or  from  the  circuit 
court  of  the  United  States,  by  appeal  or  writ  of  error  to 
the  supreme  court  of  the  United  States,  and  the  state 
shall  be  adjudged  to  pay  the  costs,  it  shall  be  the  duty  of 
the  attorney  general  to  certify  the  amount  of  such  costs 
to  the  governor,  who  shall  thereupon  issue  a  warrant  for 
the  same,  directed  to  the  state  treasurer,  who  shall  pay 
the  same  out  of  any  moneys  in  the  treasury  not  other- 
wise appropriated. 

Sec.  539.  Costs  against  assignee  after  action  broueht. 
C.  C.  P.,  s.  290. 

In  actions  in  which  the  cause  of  action  shall  become 
by  assignment  after  the  commencement  of  the  action,  or 
in  any  other  manner,  the  property  of  a  person  not  a 
party  to  the  action,  such  person  shall  be  liable  for  the 
costs  in  the  same  manner  as  if  he  were  a  party. 

Sec.  540.    Costs  on  appeals  generally.    C.  C.  P.,  s.  292. 

On  an  appeal  from  a  justice  of  the  peace  to  a  superior 
court,  or  from  a  superior  court  or  a  judge  thereof,  to  the 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  211 

supreme  court,  if  the  appellant  shall  recover  judgment 
in  the  appellate  court,  he  shall  recover  the  costs  of  the 
appellate  court  and  those  he  ought  to  have  recovered 
below,  had  the  judgment  of  that  court  been  correct, 
and  also  restitution  of  any  costs  of  the  court  appealed 
from  which  he  shall  have  paid  under  the  erroneous  judg- 
ment of  such  court.  If  in  any  court  of  appeal  there 
shall  be  judgment  for  a  new  trial,  or  for  a  new  jury,  or 
if  the  judgment  appealed  from  be  not  wholly  reversed, 
but  partly  "affirmed  and  partly  disaffirmed,  the  costs  shaE 
be  in  the  discretion  of  the  appellate  court. 

Sec.  541.    Costs  in  special  proceedings.    C.  C.  P.,  s.  294. 

The  costs  in  special  proceedings  shall  be  as  herein  al- 
lowed in  civil  actions,  unless  where  otherwise  specially 
provided. 

Noble  V  Koonce,  76 — i05;  Mayo  v.  Jones,  78 — i06. 

Sec.  543.  On  appeals  from  justices  of  the  peace.  C.  C. 
P.,  s.  295. 

Aftei-  an  appeal  from  the  judgment  of  a  justice  of  the 
peace  shall  be  filed  with  a  clerk  of  a  superior  court, 
the  costs  in  all  subsequent  stages  shall  be  as  herein  pro- 
vided for  actions  originally  brought  to  the  superior  court. 

Smith  V.  R.  R.  Co.,  73—63. 

Sec.  543.  Judgment  for  costs  against  plaintiff  and  sure- 
ties on  failure  to  maintain  action.  11.  C,  c.  31,  s.  126. 
1831,  c.  46,  ss.  1,  2. 

Whenever  an  action  shall  be  brought  in  any  court  in 
which  security  shall  be  given  for  the  prosecution  thereof, 
or  when  any  case  shall  be  brought  up  to  a  court  by  an 
appeal  or  otherwise,  in  which  security  for  the  prosecution 
of  the  suit  shall  have  been  given,  and  judgment  sliall  be 
rendered  against  the  plaintiff  for  the  costs  of  the  defend- 
ant, the  appellate  court,  upon  motion  of  the  defendant, 
shall  also  give  judgment  against  the  surety  for  said 
costs,  and  execution  may  issue  jointly  against  the  plain- 
tiff and  his  surety. 


212 


CODE  OF  CIVIL  PROCEDURE.    [Chap.  10. 


TITLE  Xin. 


OF  APPEAL  IN  CIYIL  ACTIONS. 


Section. 

544.  "Writs  of  error  abolished  and  ap- 

peals substituted. 

545.  Writs  of  certiorari,  recordan  and 

supersedeas. 

546.  Orders  made  out  of  court,  how 

vacated  or  modified. 

547.  Who  may  appeal. 

548.  Appeal,  in  what  cases  may  be 

talcen. 

549.  When  taken,  execution  not  sus- 

pended, when. 

550.  Appeals  to  be  entered  by  clerk 

on  judgment  docket;  case, 
how  stated  and  settled. 

551.  Clerk  to  make  copy  of  judg- 

ment roll,  and  send  to  clerk  of 
supreme  court. 

552.  On  appeal    security    must    be 

given  or  deposit  made,  unless 
waived. 

553.  Appeal  in  forma  pauperis. 

554.  On  judgment  for  money,  secu- 

rity to  stay  execution;  new 
undertaking,  on  sureties  be- 
coming insolvent;  perishal)le 
property  may  be  sold. 

555.  If  judgment  be  to  deliver  docu- 

ment, or  personal  property,  it 
must  be  deposited  or  security 
be  given. 

556.  If  to    execute    conveyance,  it 

must  be  executed  aud  depos- 
ited. 


Section. 

557.  Security  where  judgment  is  to 

deliver  real  property,  or  for  a 
sale  of  mortgaged  premises. 

558.  Staj'  of  proceedings  upon  sccu- 

rit)-  being  given. 

559.  Undertaking  may  be  in  one  in- 

strument or  several. 

560.  Sureties  to  justify,  or  undertak- 

ing of  no  effect. 

561.  Undertaking  must  be  filed  with 

clerk. 

562.  Intermediate    orders    aflecting 

the  judgment  may  be  reviewed 
on  appeal. 

503.  Judgment  on  appeal;    restitu- 

tion; undertakings  on  appeals 
and  writs  of  certiorari, 

504.  On  appeal,  or  rtcordan  of  de- 

fendant from  justice's  judg- 
ment, court  may  compel  plain- 
tiff to  secure  costs. 

565.  Appeals  from  a  justice   to  be 

tried  at  first  term  of  court; 
judgment  against  party  cast 
and  his  sureties;  how  to  have 
amount  of  judgment  ascer- 
tained in  case  of  default. 

566.  If  plaintiff  appeal  and  do  not 

recover  a  greater  sum,  he  shall 
not  recover  costs,  but  be  liable 
to  pay. 


Sec.  544.  Writs  of  error  abolislied,  and  appeals  substitu- 
ted.   C.  C.  P..  s.  396. 

Writs  of  error  in  civil  actions  are  abolished;  and  the 
only  mode  of  reviewing  a  judgment,  or  order,  in  a  civil 
action,  shall  be  that  prescribed  by  this  title. 
Teaguc  v.  James,  63 — 91 ;  State  v.  Swcpson,  82 — 541. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  21S 

Sec.  545.  Writs  of  certiorari,  recordari,  and  supersede 
as.    1874-'5,  c.  109. 

Writs  of  certiorari,  recordari  and  supersedeas  axe 
hereby  authorized  as  heretofore  in  use.  The  writs  ot 
certiJrari  and  recordari,  when  used  ^s  sutetot^^^^^^ 
appeal,  may  issue  when  ordered  upon  the  appl'^^^\^;^^j'° 
a  written  undertaking  for  the  costs  only;  ^u  the  s je  - 
sed'as  to  suspend  execution,  shall  not  issue  until  an  un- 
dertaking is  filed,  or  a  deposit  made  to  secure  the  jdr 
ment  sought  to  be  vacated,  as  m  cases  of  appeal  wheie 
the  execution  is  stayed.  p.,H-Pr  v 

Syme  v.  Brought.,n.  84-114;  Brown  v.  Wilhams  84-116;  Parker  ^ . 
Railroad,  84-118;  Brysou  v.  Lucas,  83-397;  Chastam  v  Chastain,  87- 
283;  McDaniel  v.  PoUac,  87-503;  State  y.  Bandall,  8<-5a. 

6erUorari,  Bat.  Dig.,  vol.  1,  p.  208  et  se,.;  vol.  3,  p.  26;  vol.  4,  p.  64, 
Bailcy'sDig.,  p.  61;  State  V.Lawrence,  81-523. 

BecorcUiri,  Bat.  Dig.,  vol.  2,  p.  1040  et  acq.;  Bailey  s  Dig.,  p.  4o6 

Sec.  546.    Orders    made    out  of  court,  how  vacated    or 
modified.    C.  C.  P.,  s.  397.  .        ,     , ,         ■, 

An  order  made  out  of  court,  without  notice  to  tlie  ad- 
verse party,  may  be  vacated  or  modified,  without  notice, 
by  the  judge  who  made  it,  or  may  be  vacated  or  raodi- 
fild  on  notice,  in  the  manner  in  which  other  motions  are 

™  Sledge  V.  Blum.  63-374;  Bank  v.  Jenkins,  64-719;  Clayton  v.  Jones, 
68-497  Mitchell  v.  Sloan,  69-10;  Gray  v.  Gaither.  71-55;  State  v.  Haw 
ki^ 70^180;  Stale  v.  Patrick,  72-217;  Blue  v.  Blue,  79-69;  Capel  v. 
Peebles,  80—90;  State  v.  Spurtin,  80—862. 

Sec.  547.  Who  may  appeal.    C.  C.  P.,  s.  298. 

Any  party  aggrieved  may  appeal  in  the  cases  prescribed 
in  this  title.  „„    ^„,  „  ...  ^ 

Rush  V.  Steamboat  Co.,  67-47;  Clemmonsv.  Hampton,  < 0-034;  Rollins 
V.  Rollins,  76—264;  Johnson  v.  Maxwell,  87—18. 

Sec.  548.  Appeal,  in  what  cases  it  may  be  taken.    C.  C.  P., 
s   299 

An  appeal  may  be  taken  from  every  judicial  order  or 
determination  of  a  judge  of  a  superior  court  upon  oi  in 
volving  a  matter  of  law  or  legal  inference  whethtT  made 
L  or  out  of  term,  which  affects  a  substantial  rig^it 
claimed  in  any  action  or  proceeding;  or  which  m  eftect 
detemrines  the  action,  and  prevents  a  ]udgment  froni 
which  an  appeal  might  be  taken;. or  discontmues  the 
action,  or  grants  or  refuses  a  new  trial. 

State  V.   Bullock.  63-570;  Smith  v.    Mitchell,   63-620;  Simonton  v. 


214  CODE  OF  CIVIL  PEOCEDURE.     [Chap.  10. 

Chipley.  61—153;  Carroll  v.  Haywood,  64-^81;  Bank  v.  Jenkins  04-719- 
Jenkins  v.  Ore  Dressing  Co.,  G5-56:J;  Rusl.  v.  Steamboat  Co'  07^7- 
Banli  V.  Tiddy,  G7— 109;  Skinner  v.  Maxwell,  67—257;  Bryau  v.  Ileck  07— 
333;  Vest  V.  Cooper,  68— 131;  .Tohntton  v.  Neville,  68-177;  Childs  v  ' Mar- 
tin, 68-307;  Fulkner  v.  Hunt,  68-475;  Lovinier  v.  Pearce,  70— 107-  Moore 
V.  Edmiston,  70-471;  Gray  v.  Gaithcr,  71-55;  Hinton  v.  Wliitcburst  71- 
66;  Mason  v.  Osgood,  71-212;  Watts  v.  Bell,  71-405;  Stale  v.  Hawkins 
73-180;  Stale  v.  Patrick,  73—217;  Maxwell  v.  Caldwell,  72— 150-  Wade  v 
New  Berne,  73-498;  Home  v.  norne,  73-534;  Windburne  v.  Bryan  73- 
47;  Bellamy  v.  Pippin,  74-46;  Johnson  v.  Bell,  74-355;  Wallin-ton  v 
Montgomery,  74-872;  Hinton  v.  Deans,  75-18;  Rouse  v.  Quinn  75-351- 
French  v.  Wilmington,  75-387;  Rollins  v.  Rollins,  70-264;  Perry  v.  Whit- 
aker,  77—103;  Crawley  v.  Woodfin,  78— 4;  Wake  County  v.  Magiiin  78— 
181;  Bryde  v.  Patterson,  78—412;  Isler  v.  Dewey,  79-5;  Ashcrolt  v.'  Lea, 
79—34;  Biishee  v.  Surles,  79—51;  Sutton  v.  Schonwald,  80—20-  Capel  v' 
Peebles,  80-90;  R.  R.  v.  Richardson,  83-343;  Gay  v.  Brookshirc,  83-^09- 
Wilson  V.  Lineberger,  82— 413;  May  v.  Dardcn,  83-237;  Telegraph  Co  v' 
R.  R.  Co.,  83-420;  R.  R.  Co.  v.  R.  R.  Co.,  83-498;  Wilson  v.  Seaglc  84- 
110;  Symc  V.  Broughton,  84—114;  Hines  v.  Hincs,  84—133-  Tuliuo-ton  v 
Williams,  84-135;  State  v.  McDowell,  84—798;  Sternberger'v.  Hawley  85 
—141;  Moore  V.  Askew,  85-199;  Spaiigh  v.  Boner,  85-308;  Cromariiev 
Com'rs,  85—311;  Moore  v.  Hill,  85-218;  Alexander  v.  Robinson  85-''75'- 
Sloan  V.  McMahon,  85-296;  Best  v.  Clyde,  80-4;  Henry  v.  Cannon  86-^ 
24;  Lougv.  Logan,  86-535;  Long  v.  Gooch.  86-709;  Roulhac  v.  Brown 
87—1;  Thomas  V.  Myers,  87—31;  Wiggins  v.  McCoy,  87-499-  Leak  v' 
Covington,  87-501;  McDaniel  v.  Pollock,  87-503;  Moore  v.  Hinnant  87 
—505;  State  v.  Owens,  87—565. 

Sec.  549.  When  taken,  execution  not  suspended,  when 
C.  C.  P.,  s.  300. 

The  appeal  must  be  taken  from  a  judgment  rendered 
out  of  term  within  ten  days  after  notice  thereof  and 
from  a  judgment  rendered  in  term  within  ten  days  after 
its  rendition,  but  execution  shall  not  be  suspended  until 
the  giving  by  the  appellant  of  the  undertakings  herein- 
after required. 

C.  C.  P.,303-313;  Stroat  v.  Woody,  63-37;  Rowland  v.  Thompson  64- 
714;  Skinner  V,  Maxwell,  67-357;  Bryan  v.  Hubbs,  69-^33;  Richardson 
V.  Debnam.  75-390;  Taylor  v.  Brower,  78-8;  Williamson  v.  Canal  Co 
78—156;  Meekins  v.  Talum,  79—546;  Applewhite  v.  Fort,  85—596. 

Sec.  550.  Appeals  to  be  entered  by  clerk  on  judgment 
docket;  case,  how  stated  and  settled.    C.  C.  P.   s  301 
C.  C.  P.,  s.  311. 

Within  the  time  prescribed  in  the  preceding  section 
the  appellant  shall  cause  his  appeal  to  be  entered  by  the 
clerk  on  the  judgment  docket,  and  notice  thereof  to  be 
given  to  the  adverse  party.     He  shall  cause  to  be  pre- 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDURE.  215 

pared  a  concise  statement  of  the  case    embodying  the 
mstructions  of  the  judge  as  signed  by  him,  it  tlieie  oe 
aTexception  thereto    and  the  requests  of  the  counsel  of 
the  mSes  for  instructions  if  there  be  any  exception  on 
account  of  the  granting  or  withholding  thereof,  and  stat- 
fng  separately  in  artides  numbered,  the  errors  aUeged. 
A  copy  of  this  statement  shall  be  served  on  the  respon- 
ded within  five  days  from  the  entry  of  the  appea  taken; 
within  three  days  after  such  service,  the  respondent  shall 
return  the  copy  with  his  approval  or  specific  amendments 
[nlorsed  or  attached;  if  the  case  be  approved  by  the  re- 
spondent, it  shall  be  filed  with  the  clerk  as  ^  part  of  the 
record-  if  not  returned  with  objections  within  the  time 
nrescrihed  it  shall  be  deemed  approved;  if  returned  with 
Sbjec  ions  as  prescribed,  the  appehant  shall  immediately 
reouest    the  judge  to  fix  a    time    and  place  for  set- 
ting the  case  befire  him;  and  the  judge  shal    forthwith 
notify  the  attorneys  of  the  parties  to  appear  before  hira 
for  that  purpose  at  a.  certain  time  and  place,  within    he 
iudicial  district,  which  time    shall  not  be  mo^e  than 
twenty  days  from  the  receipt  of  such  request;  and  at  the 
tie  aU  place  stated,  the  judge  shall  settle  and  s^g^  the 
case,  and'dehver  a  copy  to  the  attorney  of  ^ach  paity  or 
if  the  attorneys  be  not  present,  file  a  copy  n  the  oftce 
of  the  clerk  of  the   court:  Provided,  that  if  the  judge 
shaU  have  leff  the  district  before  the  notice  of  d.sagi^e- 
ment  he  may  settle  the  case  without  returning  to  the 
^strict      In  settling  the  case,  the  written  mstruc  ions 
s^ned  by  the  judgefand  the  written  requests  for  mstruc- 
t fens  s  gned  by  the  counsel,  and  the  written  exceptions 
Sbe^deemed  conclusive  as  to  what  such  "^stmf  ^^s 
requests  and  exceptions  were.      If  a  copy  of  the  case 
settled  was  delivered   to  the  appellant,   he  shall  with  n 
five  days  thereafter,  file  the  same  with  the  clm-k  and  m 
case  he  fails  to  do  so,  the  respondent  may  file  his  copy 
The  judge  shall  settle  the  case  on  appeal  within  sixty 
Safter  the  termination  of  a  special  term  or  after 
?hl  courts  of  the  district  shall  have  ended,  and  if  the 
judge  in  the  meantime  shall  have  gone  out  of  office,  he 
&1  settle  the  case  as  if  he  were  still  m  office  ami  any 
judge  faihng  to  comply  wuh  this  section  shall  be  liable 
toa  penaltFof  five  hundred  dollars,  for  the  use  of  any 
person  who  M'ill  sue  for  the  same. 


L 


Kane  v.  McCarthy,  63-299;  Campbell  v.  Allison.  63-508;  Bland  v. 
O'Hagan,  64-471;  Cardwcll  v.  Cardwell,  64-621:  Whitesulcs  v.  Wdl.an^ 
66-141;  Kirkman  v.  Disoa.  06-406;  Skinner  v.  Maxwell,  67—5/  Sud- 
derth  y.  McCombs,  67-853;  Marsh  v.   Cohen,  68-383;  Green  v.  Castle 


216  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

bury,  70—20;  Armfield  v.  Brown,  70—37;  Sampson  v.  R.  R.  Co.,  70—404; 
Duval  V.  Rollins,  71—218;  Schehan  v.  Malone,  71—440;  Bramble  v.  Brown, 

71—513;  Isler  v.  Haddork,  73—119;  Mason  v.  Osgood.  72—120;  Wade  v. 
New   Berne,  72 — 498;  Adams  v.  Reeves,  74—106;  Wilson  v.  Hutchinson, 

74— 432;Sweyison  v.  Sumniey,  74—551;  Kirk  v.  Barnliart,  74—653;  Brink 
V.  Black,  77— 59;  Taylor  v.  Brower,  78—8;  McNeill  v.  Cliadbourn,  79—149; 
Meekins  v.  Tatem,  79—546;  Eure  v.  Paston,  80—17;  Smith  v.  Lyon.  82— 
2;  Sanders  v.  Norris,  83 — 4;  Slate  v.  Tlionipson,  8.3—595;  Turner  v.  Foard, 
83 — 683;  Bryan  v.  Fisher,  85—71;  Howerton  v.  Henderson.  86 — 718;  Surratt 
V.    Crawford,  87— 373;  Bost  v.  Bost,  87—477;  McDaniel  v.  Pollock,  87—503. 

Sec.  551.  Clerk  to  make  copy  of  judgment  roll,  and  send 
to  clerk  ot  supreme  court.    C.  C.  P.,  s.  302. 

The  clerk  on  receiving  a  copy  of  the  case  settled,  as 
required  in  the  preceding  section,  shall  make  a  copy  of 
the  judgment  roll  and  of  the  case,  and  within  twenty 
days  transmit  the  same,  duly  certified  to  the  clerk  of  the 
supreme  court. 

Morrison  v.  Cornelius,  63—346;  McLean  v.  Chisholm,  64 — 323;  Skinner 
V.  Maxwell,  67—257;  Sudderth  v.  McCombs,  67—353;  Farmer  v.  Willard, 
75—401;  Bradley  v.  Jones,  76—204;  Howerton  v.  Henderson,  86—718. 

Sec.    552.  On  appeal  security  must  be  given  or   deposit 
made,  unless  waived.    C.  C.  P.,s.303.  1871-'2,  c.  31, 

s.  1. 

To  render  an  appeal  effectual  for  any  purpose  in  any 
civil  cause  or  special  proceeding,  a  written  under- 
taking must  be  executed  on  the  part  of  the  appel- 
lant, with  good  and  sufficient  surety,  in  such  sum  as 
may  be  ordered  by  the  court,  not  to  exceed  the  sum  of 
two  hundred  and  fifty  dollars,  to  the  effect  that  the  ap- 
pellant will  pay  all  costs  which  may  be  awarded  against 
him  on  the  appeal;  or  such  sum  as  may  be  ordered  by 
the  court  must  be  deposited  wdth  the  clerk  by  wiiom  the 
judgment  or  order  was  entered,  to  abide  the  event  of  the 
appeal;  such  undertaking  or  deposit  may  be  waived  by  a 
written  consent  on  the  part  of  the  respondent. 

Robeson  v.  Lewis,  04—734;  Felton  v.  Elliott,  66—195;  Weber  v.  Taylor, 
66—413;  Clerk's  Office  v.  Huffsteller,  67—449;  Bledsoe  v.  Ni.Kon,  69-81; 
Bryan  v.  Hubbs,  69—433;  State  v.  Di-xon,  71—204;  Mason  v.  Osgood,  71— 
312;  Smith  v.  Railroad  Co.,  73—63;  Martin  v.  Cliasleen,  75—96;  Slate  v. 
Morgan,  77—510;  Hancock  v.  Bramlett,  85—393;  Bryson  v.  Lucas,  85— 
397;  Smith  v.  Reeves,  85—594;  Mauney  v.  Gidney,  86—717;  Howerton  v. 
Henderson,  86—718;  Chastain  v.  Chastain,  87—283. 

Sec.  553.    Appeal  in  forma  pauperis,    1873-'4,  c.  60. 

When  any  party  to  a  civil  action  tried  and  determined 
in  the  superior  court  shall,  at  the  time  of  trial,  desire  an 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  217 

appeal  from  the  judgment  rendered  in  said  action  to  the 
supreme  court,  and  sh«U  be  unable,  by  reason  of  his 
poverty,  to  make  the  deposit  or  to  give  the  security  re- 
quired by  law  for  said  appeal,  it  shall  be  the  duty  of  the 
iudge  of  said  superior  court  to  make  an  order  allowing 
said  party  to  appeal  from  said  judgment  to  the  supreme 
court  as  in  other  cases  of  appeal,  without  giving  security 
therefor:  Frovided,  that  the  party  desmng  to  appeal 
from  said  judgment  shaU  make  affidavit  tliat  he  is  unable 
by  reason  of  his  poverty  to  give  the  security  required  by 
law  for  said  appeal,  and  that  said  party  is  advised  by 
counsel  learned  in  the  law  that  there  is  error  in  mat- 
ter of  law  in  the  decision  of  the  superior  court  in  said 
action-  Provided  further,  that  said  affidavit  shall  be  ac- 
companied by  a  written  statement  from  a  P'acticing 
attorney  of  said  superior  court  that  he  has  examined  the 
affiant's  case,  aud  that  he  is  of  opinion  that  the  decision 
of  the  superior  court,  in  said  action,  is  contrary  to  law. 

Mitchell  V.  Sloan,  69-10;  Masou  v.  Osgood,  71-212;  Martin  t.  Chas- 
teen  75-96;  Lindsay  v.  Moore,  83-444;  Slell  v.  Barbam,  85-88;  Leach 
V.  Jones,  86-404;  SteU  v.  Barham,  8&-737;  Hall  v.  Younts,  87-28o. 

Sec.  554.  On  judgment  for  money,  security  to  stay  exe- 
cution; new  untlcrtakiug,  on  sureties  becoming  insol- 
vent; perishable  property  may  be  sold.  C.  C.  P.,  ss. 
304,311. 

If  the  appeal  be  from  a  judgment  directing  the  pay- 
ment of  money,  it  sliall  not  stay  the  execution  of  the 
judgment,  unless  a  written  undertaking  be  executed  on 
the  part  of  the  appellant,  by  one  or  moi-e  sureties,  to  the 
effect  that  if  the  judgment  appealed  from,  or  any  part 
thereof,  be  affirmed,  or  the  appeal  be  dismissed  the  ap- 
pellant will  pay  the  amount  directed  to  be  paid  by  the 
ludgment,  or  the  part  of  such  amount  as  to  which  the 
judgment  shall  be  affirmed,  if    it  be  affirmed   only  m 
part  and  all  damages  which  shall  be  awarded  against  the 
appellant  upon  the  appeal.     Whenever  it  shall  be  satisfac- 
torily made  to  appear  to  the  court  that  since  the  execu- 
tion of  the  undertaking  the  sureties  have  become  insol- 
vent, the  court  may,  by  rule  or  order,  require  the  appel- 
lant to  execute,  file  and  serve  a  new  undertaking,  as 
above-  and  in  case  of  neglect  to  execute  such  undertak- 
in<^  within  twenty  days  after  the  service  of  a  copy  of  the 
ruTe  or  order  requiring  such  new  undertaking,  the  appeal 
may,  on  motion  to  the  court,  be  dismissed  with  costs. 
Whenever    it    shall   be   necessary  for  a  party  to    any 
action  or  proceeding  to  give  a  bond  or  an  undertaking, 
10 


218  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

with  surety  or  sureties,  lie  may  in  lieu  thereof,  deposit 
with  the  officer  into  court  as  the  case  may  require,  money 
to  the  amount  for  which  such  bond  or  undertaking  is  to 
be  given.  The  court  in  which  such  action  or  proceeding 
is  pending  may  direct  what  disposition  shall  be  made  ot 
such  money  pending  the  action  or  proceeding.  In  any 
case  where,  by  this  section,  the  money  is  to  be  deposited 
with  an  officer,  a  judge  of  the  court,  at  any  time,  upon 
the  application  of  either  party,  may,  before  such  deposit 
is  made,  order  it  to  be  deposited  in  court  instead  of  with 
such  officer;  and  a  deposit  made,  pursuant  to  such  order, 
shall  be  of  the  same  effect  as  if  made  with  such  officer. 

The  perfecting  of  an  appeal  by  giving  the  undertaking 
mentioned  in  this  section,  shall  stay  proceedings  in  the 
court  below  upon  the  judgment  appealed  from;  except 
when  the  sale  of  perishable  property  is  directed,  the  court 
below  may  order  the  property  to  be  sold  and  the  proceeds 
thereof  to  be  deposited  or  invested,  to  abide  the  judg- 
ment of  the  appellate  court. 

Clerk's  office  V.  Huffstellcr,  67—449;  Co.x:  v.  Hamilton,  69—30;  Bledsoe 
V.  Nixon,  69— 81;  Bryan  v.  Hubbs,  69— 423;  Hancock  v.  Bramlett,  85— 
393;  Leach  v.  Jones,  86—404;  Burnett  v.  Nicholson,  86—726. 

Sec.  555.  If  judgrment  be  to  cleHver  document,  or  per- 
sonal property,  it  must  be  deposited  or  security  be 
given.   C.  C.  P.,s.  305. 

If  the  judgment  appealed  from  direct  the  assignment 
or  delivery  of  documents  or  personal  property,  the  execu- 
tion of  the  judgment  shall  not  be  stayed  by  appeal,  unless 
the  things  required  to  be  assigned  or  dehvei'ed  be  brought 
into  court,  or  placed  in  the  custody  of  such  officer  or  re- 
ceiver as  the  court  shall  appoint,  or  unless  an  undertaking 
be  entered  into  on  the  part  of  the  appellant,  by  at  least 
two  sureties,  and  in  such  amount  as  the  court  or  a  judge 
thereof  shall  direct,  to  the  effect  that  the  appellant  wiU 
obey  the  order  of  the  appellate  court  upon  the  appeal. 

Bryan  V.  Hubbs,  69—423;  Hancock  v.  Bramlett,  85—393. 

Sec.  556.  If  to  execute  conveyance,  it  must  be  executed 
and  deposited.    C.  C.  P.,  s.  JJOG. 

If  the  judgment  appealed  from  direct  the  execution  of 
a  conveyance  or  other  instrument,  the  execution  of  the 
judgment  shall  not  be  stayed  by  the  appeal  until  the  in- 
strument shall  have  been  executed  and  deposited  with  the 
clerk  with  whom  the  judgment  is  entered,  to  abide  the 
judgment  of  the  appellate  court. 

Tate  V.  Powe,  64—644;  Bryan  v.  Hubbs,  69— 423;  Hancock  v.  Bramlett, 
85—393. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  5 10 

Sec.  557.  Security  where  judgment  is  to  deliver  real  prop- 
erty, or  for  a  sale  of  mortgaged  premises.  C.  C.  P.,  s. 
307. 

If  the  judgment  appealed  from  direct  the  sale  or  deliv- 
ery of  possession  of  real  property,  the  execution  of  the 
same  shall  not  be  staved,  unless  a  written  undertakmgbe 
executed  on  the  part'of  the  appellant,  with  one  or  more 
sureties,  to  the  effect  tliat,  during  the  possession  of  such 
property  by  the  appellant,  he  will  not  commit,  or 
suffer  to  be  committed,  any  waste  thereon,  and  that  if 
the  judgment  be  affirmed,  he  will  pay  the  value  of  the 
use  and  occupation  of  the  property,  from  the  tune  of  the 
appeal  until  the  delivery  of  possession  thereof,  pursuant 
to  the  judgment,  not  exceeding  a  sum  to  be  fixed  by  a 
judge  of  the  court  by  which  judgment  was  rendered, 
and  which  shall  be  specified  in  the  undertaking.  When 
the  judgment  is  for  the  sale  of  mortgaged  premises,  and 
the  payment  of  a  deficiency  arising  upon  the  sale,  the 
undertaking  shall  also  provide  for  the  payment  of  such 
deficiency. 

Tate  V.  Powe,  64—644;  Cox  v.  Hamilton,  69—30;  Bryan  v.  Hubbs,  69— 
423;  Meroney  v.  "Wright,  84 — 336;  Hancock  v.  Bramlett,  85—393. 

Sec.  558.  Stay  of  proceedings  upon  security  being  given. 
C.  C.  P.,  s.  308. 

Whenever  an  appeal  is  perfected  as  provided  by  this 
code  it  stays  all  further  proceedings  in  the  court  below 
upo  1  the  judgment  appealed  from,  or  upon  the  matter 
embraced  therein;  but  the  court  below  may  proceed  upon 
any  other  matter  included  in  the  action  and  not  affected 
by  the  judgment  appealed  from.  And  the  court  below 
may,  in  its  discretion,  dispense  with  or  limit  the  security 
required,  when  the  appellant  is  an  executor,  adminis- 
trator, tmstee,  or  other  person  acting  in  another's  right; 
and  may  also  limit  such  security  to  an  amount  not  more 
than  fifty  thousand  dollars,  where  it  would  otherwise  ex- 
ceed that  sum. 

C.  C.  p.,  sections  304,  305,  306,  307;  Bledsoe  v.  Nixon,  69—81;  Johnston 
V.  Rankin,' 70—550;  Carlton  v.  Byers,  71—331;  Phifer  v.  R.  R.  Co.,  73— 
433;  McRae  v.  New  Hanover  Co.,  74—415;  Hancock  v.  Bramlett,  85—393; 
Leach  v.  .Jones,  86—404. 

Sec.  559.  Undertaking  may  be  in  one  instrument  or  sev- 
eral.    C.  C.  P.,  s.  309. 

The  undertakings  may  be  in  one  instrument  or  several, 
at  the  option  of  the  appellant;  and  a  copy,  including  the 
names  and  residences  of  the  sureties,  must  be  served  on 


220  CODE  OF  CIVIL  PROCEDTJEE.     [Chap.  10. 

the  adverse  party,  with  the  notice  of  appeal,  unless  the 
required  deposit  is  made,  and  notice  thereof  given. 

C.  U.  P..  sections  304,  305,  306,  307.  Robeson  v.  Lewis,  64—734;  Bryan 
V.  Hubbs,  69—423;  Hancoek  v.  Bramlett,  85—398. 

Sec.  b60.  Sureties  to  justify,  or  undertaking  of  no  effect. 
C.  C.  P.,  s.  310. 

An  undertaking  upon  an  appeal  shall  be  of  no  effect 
unless  it  be  accompanied  by  the  affidavit  of  one  of  the 
sureties  that  he  is  worth  double  the  amount  specified 
therem.  The  respondent  may,  however,  except  to  the 
sutficiency  of  the  sureties  within  ten  days  after  the  notice 
of  the  appeal;  and  unless  they  or  other  sureties  justify 
within  ten  days  thereafter,  the  appeal  shall  be  regarded 
as  if  no  undertaking  had  been  given.  The  justification 
shall  oe  upon  a  notice  of  not  less  than  five  days. 

C.  C.  P.,  sections  165,  166;  Saulsbiiry  v.  Cohen,  68—289;  Bryan  v.  Hubbs. 
69—42!,;  Wade  v.  New  Berne,  73—498;  Hancock  v.  Bramlett,  85—393; 
Bryson  r.  Lucas,  85—397;  Smith  v.  Reeves,  85— 594;  Mauney  v.  Giduey,  86 — 
717;  Howerton  v.  Henderson,  86—718;  Chastain  v.  Chastain,  87—283. 

Sec.  561.  Undertaking  must  be  filed  with  clerk.  C.  C.  P., 
s.  312. 

The  undertaking  must  be  filed  with  the  clerk  with 
whom  the  judgment  or  order  appealed  from  was  entered. 
This  chapter  as  to  the  security  to  be  given  upon  appeals, 
and  as  to  the  stay  of  pi  oceedings,  shall  apply  to  all  appeals 
taken  to  the  supreme  court. 
Jacobs  V.  BurRwyn,  63—196:  Bryan  v.  Hubbs,  69-423. 

Sec.  562.  Intermediate  orders  aflPecting  the  judgment 
may  be  reviewed  on  appeal.    C.  C.  P.,  s.  313. 

Upon  an  appeal  from  a  judgment,  the  court  may  re- 
view any  intermediate  order  involving  the  merits  and 
necessarily  affecting  the  judgment. 

Long  V.  Holt,  G8— 53;  SIcKclhan  v.  Ray,  71—165;  Hinton  v.  Deanes, 
75—18,  Jones  v.  Boyd,  80—258. 

Sec.  563.  Judgment  on  appeal;  restitution;  undertak- 
ings on  appeals  and  writs  of  certiorari.  C.  C.  P.,  s.  314. 
R.  C,  c.  4,  s.  10.  1785,  c.  233,  s.  2.  1810,  c.  793,  s.  1. 
1831,c.  46,  s.  2. 

Upon  an  appeal  from  a  judgment  or  order,  the  appel- 
late coiu-t  may  reverse,  affirm  or  modify  the  judgment 
or  order  appealed  from,  in  the  respect  mentioned  in  the 
notice  of  appeal,  and  as  to  any  or  all  of  the  parties,  and 
may,  if  necessary  or  proper,  order  a  new  trial.     When 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  221 

the  iud^ment  is  reversed  or  modified,  the  appeUate  court 
may  make  complete  restitution  of  all  property  and  rights 
lost  by  the  erroneous  judgment. 

Undertakings  for  the  prosecution  of  appeals  and  on 
writs  of  certiorari  shall  make  a  part  of  the  record  sent 
up  to  the  supreme  court,  on  which  judgment  may  be 
entered  against  the  appellant  or  person  prosecuting  the 
writ  of  certiorari  and  his  sureties  m  all  cases  where 
judgment  shall  be  rendered  against  the  appellant  or  per- 
son prosecuting  said  writ. 

Whitehead  v.  Smith,  8  Jon..  351;  Clerk's  Office  v.  Huffsteller.  67-449; 
Wade  V  New  Bi-rne,  72-494;  Green  v.  Hobgood,  74-234;  State  v.  R.  K. 
Co  74-287-  Rouse  v.  Quinn,  75-354;  Heyer  t.  Beatty.  76-28;  Lane 
T  Morton  73-7-  Bernard  v.  Johnston,  78-25;  Howerton  v.  Henderson, 
86-718;  Boyett  v.  Vaugban,  86-725;  Burnett  v.  Nicholson,  86-728; 
Chastain  v.  Chastain,  87—283. 

Sec  564.  On  appeal,  or  recordari  of  defendant  from  jus- 
tice's iudgmeut,  court  may  compel  plaintiff  to  secure 
costs.    B.  C,  c.  31,  s.  104.     1831,  c.  29,  s.  1. 

When  any  defendant  shall  appeal  from  the  judgment 
of  a  justice  of  the  peace  to  the  superior  court,  or  when 
the  judgment  of  such  justice  shall  be  removed  by  the  de- 
fendant by  recordari  or  otherwise,  to  a  superior  court, 
the  court  having  cognizance  of  such  appeal  or  recordari 
may  upon  sufhcient  cause  shown  by  affidavit,  compel 
the  plaintiff  to  give  an  undertaking,  with  sufficient 
surety  for  payment  of  the  costs  of  the  suit,  m  the  event 
of  his  faihng  to  prosecute  the  same  with  effect. 

Lea  V.  Brooks,  4  Jon.,  438. 

Sec  565.  Appeals,  from  a  justice  to  be  tried  at  first  term 

of  court;  judgment  against  party  cast  and  his  sureties; 

liow  to  have  amount  of  judgment  ascertained  in  case  of 

default.    R.  C,  c.  31,  s.  105.    1777,  c.    115,    s.    63. 

1794.  C.414,  s.  1.  ,       .    .  X     r 

When  an  appeal  shall  be  taken  from  the  judgment  of 

a  justice  of  the  peace  to  a  superior  court,  the  same  shall 

be  reheard  by  the  court;  whereupon  an  issue  shall  be 

made  up  and  tried  by  a  jury  at  the  first  term  to  which  it 

is  returned,   unless  continued;   and  judgment  shall  be 

given  therein  against  the  party  cast  and  his  sureties^ 

And  when  the  defendant  shall  make  default,  the  plaintiff 

in  actions  instituted  on  a  single  bond,  a  covenant  for  the 

payment  of  money,  bill  of  exchange,  promissory  note,  or 

a  signed  account,  shaU  have  judgment,  and  in  other  cases 


222  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

may  have  his  inquiry  of  damages  executed  forthwith  by 
a  jury. 

Ramsour  V.  Harshaw,  8  Ircd.,  480;  Williams  t.  Beaslcy,  13  Ired.,  112; 
Hartsfield  v.  Jones,  4  Jon.,  309;  Spaugh  v.  Boner.  85—208;  Brown  v.' 
Brittain,  84—553. 

Sec.  666.  If  plaiutiff  appeal  and  do  uot  recover  a  greater 
sum,  be  shall  uot  recover  costs,  but  be  liable  to  pay. 
R.  C,  c.  31,  s.  106.     1794,  c.  414,  s.  17. 

If  judgment  be  entered  for  the  plaintiff,  and  he  shall 
not  recover  on  his  appeal  a  greater  sum  than  was  recov- 
ered before  the  justice,  besides  interest  accrued  since  the 
rendition  of  the  judgment,  he  shall  not  recover  the  costs 
of  the  appeal,  but  shall  be  liable  at  the  discretion  of  the 
court  to  pay  the  same. 


TITLE  XIV. 

OF  THE    MISCELLANEOUS   PROCEEDINGS  IN   CIVIL 
ACTIONS,  AND  GENERAL  PROVISIONS. 

Chap.       I.  Submitting  a  Controversy  without  Action. 
II.  Confession  of  Judgment  without  Action. 

III.  Offer  of  the   Defendant  to  Compromise 

THE  Whole  or  a  Part  of  the  Action. 

IV.  Admission  or  Inspection  of  Writings. 
V.  Examination  of  Parties. 

VI.  Examination  of  Witnesses. 
VII.  Motions  and  Orders. 
VIII.  Computation  of  Time. 
IX.  Notices  and  Filing  and  Service  of  Papers. 
X.  Duties  of  Sheriffs  and  Coroners. 
XL  Powers  of  Referees. 
XII.  Miscellaneous  Provisions. 


CHAPTER  ONE. 
SUBMITTING  A  CONTEOVEESY  WITHOUT  ACTION. 

Section.  Skction. 

567.   Controversy,     how  submitted    5G9.  Judgment,    how  enforced   and 

without  action.  appealed  from. 

668.  Judgment  roll. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  223 

Sec.  567.  Controversy,    how    submitted  without  action. 
C.  C.  P.,  s.  315. 

Parties  to  a  question  in  difference,  which  might  be  the 
subiect  of  a  civil  action,  may,  without  action,  agree  upon 
a  case  containing  the  facts  upon  which  the  controversy 
depends,  and  present  a  submission  ot  tne  same  to  any 
court  which  would  have  jurisdiction  if  an  action  had 
been  brought.  But  it  must  appear  by  affidavit  that  the 
controversy  is  real,  and  the  proceedings  m  good  faith  to 
determine  "the  rights  of  the  parties.  The  ]udge  shall 
thereupon  hear  and  determine  the  case,  and  render  judg- 
ment thereon  as  if  an  action  were  pending. 

Bates  V  Lilly  65-333;  Johusoii  v.  Cross.  66-167;  Hervey  v.  Edmunds, 
68-343-  Pullett  v.  Raleigli,  68-451;  Hager  v.  Ni.xon,  68-108;  McKethan 
^  Ray  71-165;  Lewis  v.  County  of  Wake,  74-194;  Holland  v.  Isler,  77— 
1- Dixon  V  Coke  77-305;  Miller  v.  Churchill,  78-373;  Harrell  v.  Peebles, 
79_2G-  Grant  v.  Newsom,  81-36;  Davis  v.  Moss,  81-303;  State  v.  Alphin, 
81—566;  Busbee  v.  Macy,  85-339;  Busbee  v.  Lewis,  85-333;  Pearson  v. 
Boyden,'  86—585;  Moore  v.  Hinnant,  87—505. 

Sec.  568.  Judgment  roll.    C.  C.  P.,  s.  316. 

Judf^ment  shall  be  entered  in  the  judgment  docket,  as 
in  other  tases,  but  without  costs  for  any  proceeding  prior 
to  trial  The  case,  the  submission,  and  a  copy  of  the 
judgment,  shall  constitute  the  judgment  roU. 

Sec.  569.  Judgment,  how  enforced  and  appealed  from. 
C.  C.  P.,  s.  317. 

The  judgment  may  be  enforced  in  the  same  manner  as 
if  it  had  been  rendered  in  an  action,  and  shall  be  subject 
to  appeal  in  hke  manner. 


CHAPTER   TWO. 
CONFESSION  OF  JUDGMENT  WITHOUT  ACTION. 


Section. 

570.  Judgment  may  be  confessed  for 
debt  due  on  contingent  liabi- 
lity. 


Section. 

571.  Statement  in  writing  and  form 

tbei'eof. 
573.  Judgment  and  execution. 


Sec.  570.  Judgment  may  he  confessed   for  debt   due   ou 
contingent  liability.    C.  C.  P.,  s.  325. 

A  judgment  bv  confession  may  be  entered,  without 


224  CODE  OF  CIVIL  PEOCEDUEE.     [Chap.  10. 

action,  either  in  or  out  of  term,  either  for  money  due  or 
to  become  due,  or  to  secure  any  person  against  contin- 
gent habihty  on  behalf  of  the  defendant,  or  both,  in  the 
manner  prescribed  by  this  chapter. 

Hervey  v.  Edmunds,  68—243;  McAden  v.  Hooker,  74—24;  Davidson  v 
Alexander,  84^621. 

Sec.  571.  Statement  in  writing  and  form  thereof.    C.  C 
P.,  s.  326. 

A  statement  in  writing  must  be  made,  signed  by  the 
defendant,   and  verified  by  his  oath,  to  the  following 

(1)  It  must  state  the  amount  for  which  judgment  may 
be  entered,  and  authorize  the  entry  of  iudgment 
therefor; 

(2)  If  it  be  for  money  due,  or  to  become  due,  it  must 
state  concisely  the  facts  out  of  which  it  arose,  and  must 
show  that  the  sum  confessed  therefor  is  justly  due,  or  to 
become  due; 

(3)  If  it  be  for  the  purpose  of  securing  the  plaintiff 
agamst  a  contmgent  liability,  it  must  state  concisely  the 
facts  constitutmg  the  liability,  and  must  show  that  the 
sum  confessed  therefor  does  not  exceed  the  same. 

McAdea  v.  Hooker,  74—24;  Davidson  v.  Alexander,  84— C21. 

Sec.  572.  Judgment  and  execution.    C.  C.  P.,  s.  327. 

The  statement  may  be  filed  with  the  clerk  of  the 
superior  court  of  the  county  in  which  the  defendant 
resides,  or  if  he  does  not  reside  in  the  state,  of  some 
county  in  which  he  has  property.  The  clerk  shall  indorse 
upon  it  and  enter  on  his  judgment  docket  a  judgment  of 
the  court  for  the  amount  confessed,  with  three  dollars 
costs,  together  with  disbursements.  The  statement  and 
afifidavit,  with  the  judgment  indorsed,  shall  thenceforth 
become  the  judgment  roll.  Executions  may  be  issued  and 
enforced  thereon  in  the  same  mamier  as  upon  judgments 
ui  other  cases  in  such  courts.  When  the  debt  for  which 
the  judgment  is  recovered  is  not  all  due,  or  is  payable  in 
instalments,  and  the  instalments  are  not  all  due,  the 
execution  may  issue  upon  such  judgment  for  the  collec- 
tion of  such  instalments  as  have  become  due,  and  shall  be 
m  the  usual  form;  but  shall  have  indorsed  thereon,  by 
the  attorney  or  person  issuing  the  same,  a  direction  to 
the  sheriff  to  collect  the  amount  due  on  such  judi^ment, 
with  interest  and  costs,  which  amount  shall  be  "stated, 
with  interest  thereon,  and  the  costs  of  said  judgment. 
JNotwithstandmg  the  issue  and  collection  of  such  execu- 


Chap.  10.]    CODS  OF  CIVIL  PROCEDURE.  225 

tion  the  iudgment  shaU  remain  as  security  for  the 
instalments  thereafter  to  become  due;  and  whenever  any 
further  instalment  become  due,  execution  may,  m  like 
manner,  be  issued  for  the  collection  and  enforcement  of 
the  same. 
McAden  v.  Hooker,  74—34. 


CHAPTER  THREE. 

OPTER  OP  THE  DEFENDANT  TO  COMPEOMISE  THE 
^  WHOLE  OR  APART  OF  THE  ACTION. 


Section. 

573.  Offer  of  compromise. 

574.  Effect  of  compromises  in  gen- 

eral. 

575.  Defendant  may  offer  to  liquidate 

damages  conditionally. 


Section. 

576.  Effect  of  acceptance  or  refusal 

of  offer. 

577.  In  trespass  upon  real  property, 

defendant  may  disclaim  title 
and  plead  tender  in  bar. 


Sec.  573.  Offer  of  compromise.    C.  C.  P.,  s.  328,  (1.) 

The  defendant,  at  any  time  before  the  trial  or  verdict^ 
mav  lerve  upon  the  plaintiff  an  offer  m  writmg  to  allow 
Sment  to  betake^,  against  him  for  the  sum  or  prop- 
erty, or  to  the  effect  therein  specified,  with  costs.     1   the 
Stiff  accept  the  offer,  and  give  notice  thereof  in  writing 
wftMn  ten  days,  he  may  file  the  summons,  complaint  and 
Ser  with  an  affidavit  of  notice  of  acceptance,  and  the 
cS  must  thereupon  enter  judgment  accordingly     If 
the  notice  of  acceptance  be  not  given,  the  offer  is  to  be 
deemed  withdrawn,  and  cannot  be  given  in  evidence; 
aSthl  plaintiff  fail  to  obtain  a  more  favorable  .iudg- 
ment he  cannot  recover  costs,  but  must  pay  the  defend- 
SS?s  costs  from  the  time  of  the  offer  ;  and  m  case  the 
^Pfpndant  shall  set  up  a  counter-claim  m  his  answer  to 
afalunt  greater  tSan  the  plaintiff's  claim,  or  sufficient 
to  reduce  the  plaintiff's  recovery  below  firty  dollars  then 
the  Sntiff  may  serve  upon  the  defendant  an  offer  in 
writing    to  allow  judgment  to  be  taken    agamst  him 
for  the  amount  specifild,  or  to  aUow  said  counter-claim 
to  the  amZnt  spedfied  with  costs.     If  the  deendant  ac- 
cept the™ffer,  aid  give  notice  thereof  m  wnting^within 
ten  days    he  may  enter    judgment  as  above  for  the 
amouSt^s'pecified,  if  the  offer  entitle  him  to  judgment,  or 


226  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

if  the  amount  specified  in  said  offer  shall  be  allowed  him 
in  the  trial  of  the  action.  If  the  notice  of  acceptance  be 
not  given,  the  offer  is  to  be  deemed  withdrawn,  and  can- 
not be  given  in  evidence  ;  and  if  the  defendant  fail  to 
recover  a  more  favorable  judgment,  or  to  establish  his 
counter-claim  for  a  greater  amount  than  is  specified  in 
said  offer,  he  cannot  recover  costs,  but  nmst  Day  the 
plaintiff's  costs  from  the  time  of  the  offer. 

Sec.  574.  Effect  of  compromises  iu  general.     1874-'5    c 
178,  s.l. 

In  all  claims,  or  money  demands,  of  whatever  kind, 
and  howsoever  due,  where  an  agreement  shall  have 
been  or  shall  be  made  and  accepted  for  a  less  amount 
than  that  demanded  or  claimed  to  be  due,  in  satisfaction 
thereof,  the  payment  of  such  less  amount  according  to 
any  such  agreement  in  compromise  of  the  whole,  shall 
be  a  full  and  complete  discharge  of  the  same. 

Curry  V.  Kennedy,  78—91;  Fickey  v.  Merdmon,  79—585;  Williamson  v. 
Canal  Co.,  84^639. 

Sec.  5/5.  Defendant  may  offer  to  liquidate  damages  con- 
ditionally.   C.  C.  P.,  £.  .329. 

In  an  action  arising  on  contract,  the  defendant  may, 
with  his  answer,  serve  upon  the  plaintiff  an  offer  in 
writing,  that  if  he  fails  in  his  defence,  the  damages  be 
assessed  at  a  specified  sum;  and  if  the  plaintiff  signify 
his  acceptance  thereof  in  writing,  ten  days  before  the 
trial,  and  on  the  trial  have  a  verdict,  the  damages  shall 
be  assessed  accordingly. 

Sec.  576.  Effect  of  acceptance  or  refusal  of  offer.  C.  C 
P.,s.  330. 

If  the  plaintiff  does  not  accept  the  offer,  he  sliall  prove 
his  damages,  as  if  it  had  not  been  made,  and  shall  not  be 
permitted  to  give  ir  ixi  evidence.  And  if  the  damages 
assessed  in  his  favor  shall  not  exceed  the  sum  mentioned 
in  the  offer,  the  defendant  shall  recover  his  expenses 
incurred  in  consequence  of  any  necessary  preparation  or 
defence  in  respect  to  the  question  of  damages.  Such 
expense  shall  be  ascertained  at  the  trial. 

Sec.  577.  In  trespass  upon  real  property,  defendant  may 
disclaim  title  and  plead  tender  iu  bar.  K.  C,  c.  31,  s. 
79.     1715,  c.  3,  s.  7. 

In  actions  of  trespass  upon  real  estate,  wherein  the 
defendant  in  his  answer  shall  disclaim  to  make  any  title 


Chap.  10.]    CODE  OF  CIVIL  PKOCEDUEE.  227 

SSenteorKunfar^^^^  defendant  shall  be  per- 
mS  to  make  a  disclaimer,  and  that  the  trespass  was 
bv  ne 'liaence  or  involuntary,  and  a  tender  or  offer  ot 
suffici^n!  amends  for  snch  trespass;  wherenpon,  or  upon 
some  of  them,  the  plaintiff  shall  ]oin  issue,  and  if  the 
issue  be  found  for  the  defendant,  or  if  the  plaintiff  shall 
be  nonsuited,  he  shall  be  barred  from  the  said  action  and 
all  other  suits  concerning  the  same. 

Blackburn  v.  Bowmai.,  1  Job..  441;  Wooley  v.  Robinson,  7  Jon,,  30. 


CHAPTER  FOUR. 
ADMISSION  OR  INSPECTION  OF  WEITINGS. 


Section. 

578.  Inspection  and  copy  of  books, 

papers,  and  documents,  how 

obtained. 


Sec  578.  Inspection  and  copy  of  books,  papeis,  and  docu- 

^"'inenS,  Ixow  obtained.  K.  C,  c.  31.  s.  82     R.  S    c   31.  s. 

86.     1831,  c.  1095.    1838,  c.  7.    C.  C.  P.,  s^f^l. 

Either  narty  may  exhibit  to  the  other,  or  to  his  attor- 
ney at  a7y     me  before  the  trial,   any  paper  material  to 
IhJactfon,    and   request  an  admission  m  wntmg  of  its 
lenuineness.     If  thi  adverse  party,  or  his  attorney,  fail 
fojve  the  admission  within  four  days  after  the  request 
and  if  the  party  exhibiting  the  paper  be  af  terwarfs  put  to 
expense  in  order  to  prove  its  genumeness,  and  the  same 
be  toally  P?oved  or  admitted  on  the  trial  such  expense 
to  £  ascertained  at  the  ^ml,  shall  be  paid  by  the  p^^^^ 
refusing  the  admission,  unless  it  appear  to  the  sati^tac- 
tLn  of  the  court  that  there  were  good  reasons  for  the  re- 
fusal     Tiae  court  before  which  an  action  is  pending  or 
a  Sge  thereof,  may,  in  their  discretion,  and   upon  due 
no\icf,onier  either  party  to  give  to   the   other,  within  a 
specified  time,  an  inspection  and  copy  or  permission  to 
take  a  copy,  of  any  books,  papers,  and  documents  m-  his 
Sssession  or  under  his   control,  contaimng  evideiice   re- 
Fatin-  to  the  merits  of  the  action  or  the  defence  therein. 
If  compliance  with  the  order  be  refused,  the  court,  on 


228  CODE  OF  CIVIL  PROCEDUEE.     [Chap.  10. 

motion,  may  exclude  the  paper  from  being  given  in  evi- 
dence, or  punish  the  party  refusing,  or  both. 

Graham  v.  Hamilton,  3  lied.,  381;  McGibboney  v.  Mills,  13  Ircd.,  163; 
Branson  v.  Feulress,  13  Ired.,  1G5;  Fuller  v.  McMillan,  Busb.,  206;  Ward 
V.  Simmons,  1  Jon.,  404;  Murcliisou  v.  McLeod.  2  Jon.,  239;  Maxwell 
V.  McDowell,  5  Jon.,  391;  Morrow  v.  Alhuan,  65—508;  Linker  v.  Ben- 
son, 67—150;  Justice  v.  Bank,  83—8;  McLcod  v.  BuUai-d,  84—515;  Knight 
V.  Houglitalling,  85—17;  Com'rs  v.  Lemly,  85—341. 


CHAPTER  FIVE. 
EXAMINATION  OF  PAKTIES. 


Section. 

579.  Action  for  discovery  abolished. 

580.  A  party  may  be  examined   as  a 

witness  except  in  certain  cases. 

681.  Such  examination  also  allowed 
before  trial. 

583.  Party,  how  compelled  to  at- 
tend. 

583.  Testimony  of  party  may  be  re- 
butted. 

684.  Effect  of  refusal  to  testify. 


Section. 

585.  Testimony  of  a   party  not  re- 

sponsive to  the  inquiries  may 
be  rebutted  by  the  oath  of  the 
party  calling  him. 

586.  Persons    for  whom    action    Is 

brought  or  defended  may  be 
examined. 

587.  Examination  of  co-plaintiff  or 

co-defendiint. 

588.  Husband  and  wife  witnesses. 


Sec.  579.  Action  for  discovery  abolished.  C.  C.  P.,  s. 
332. 

No  action  to  obtain  discovery  under  oath,  in  aid  of  the 
prosecution  or  defence  of  another  action,  shall  be  allowed, 
nor  shall  any  examination  of  a  party  be  had,  on  behalf 
of  the  adverse  party,  except  in  the  manner  prescribed  by 
this  chapter. 

School  Committee  v.  Kesler,  66—323;  Strudwick  v.  Brodnax,  83 — 101; 
Com'rs  V.  Lemly,  85 — 341. 

Sec.  580.  A  party  may  be  examined  as  a  witness  except 
in  certain  cases.  C.  C.  P.,  s.  333.  1879,  c.  183.  1883, 
c.  310,  ss.  1,  2. 

A  party  to  an  action  may  be  examined  as  a  witness 
at  the  instance  of  the  adverse  party,  or  of  any  one  of 
several  adverse  pai'ties,  and  for  that  purpose  may  be  com- 
pelled, in  the  same  manner  and  subject  to  the  same  rules 
of  examination  as  any  otiier  witness  to  testify,  either  at 
the  trial  or  conditionally  or  upon  commission:  Provided, 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDURE.  229 

no  person  who  is  or  shall  be  a  party  to  an  action  founded 
onSgment  rendered  before  the  first  day  of  August 
one  thousand  eight  hundred  and  sixty^eight,  or  ou  any 
bond  executed  prior  to  said  date,  or  tbe  assignor  en- 
dorser or  any  person  wlio  has  at  the  time  of  the  tiial  or 
e?er  ias  SJLy  interest  in  such  J  ^dgment  or  bond  shal 
hP  a  comnetent  witness  on  the  trial  of  such  action,  but 
this  pmvfso  shall  not  apply  to  the  trial  of  any  action 
conim'enced  before  the  firL^ay  of  August  -e  thousand 
eight  hundred  and  sixty-eight,  nor  to  the  trial  of  any 
act  on  in  which  the  defendant  therein  relies  upon  the  p  ea 

orpaySent  in  fact,  or  pleads  \^-^^^irv^f^^JfiA 
introduces  himself  as  a  witness  to  ^staWish  the  i  uth  o^ 
sucli  plea,  but  in  all  such  cases  the  rules  of  evidence  as 
contained  in  this  code  shall  prevail. 

Whitesides  y.  Green,  64-307;  McKesson  v.  Hennessce,  66-473;  Taylor 
V  Taylor  76-433;  Cannon  v.  Morris,  81-130;  Smith  v.  Hanes,  83-448, 
Tabor  V.  War.1,  83-291;  Wilkerson  v.  Buchanan.  83-296;  Strud^^v^k  v. 
Brodnax,  83-401;  Macay,  ex  parte,  8i-6i;  Jones  v.  Henry,  84-320; 
Cotn'rs  ;.  Lemly,  85-341;  Pugh  v.  Grant.  8^39;  Morgan  v.  Bu,Umg, 
86—66;  Johnston  v.  Joues,  87—393. 

Sec.  581.  Such  examination  also  allowed  before  trial.    C. 
C.  P.,  s.  334. 

The  examination  instead  of  being  had  at  the  trial  as 
nrovided  m  the  preceding  section,  may  be  had  at  any 
Sr  before  the  trial,  at  the  option  of  the  party  claimmg 
ii  be  ore  a  judge  or  clerk  of  the  court  on  a  previous 
notice  to  the  party  to  be  examined,  and  any  other  ad- 
verse party  of  at  least  five  days,  unless  for  good  cause 
Ihown^theudge  shall  order  otherwise  But  the  party 
Sbl  examined^  shall  not  be  compelled  to  attend  m  any 
county  otber  than  that  of  his  residence,  or  where  he  may 
be  served  with  a  summons  for  his  attendance. 

Strudwick  V.  Brodnax,  83-401;  Com'rs  v.  Lemly,  85-341. 

Sec.  583.  Party,  liow  compelled  to  attend.    C.  C.  P.,  s. 
335.  ^.  ,. 

The  party  to  be  examined,  as  in  the  preceding  section 
provided!  niay  be  compelled  to  attend  in  the  same  man- 
SerTs  a  witness  who  is  to  be  examined  conditionally; 
and  ?lie  examination  shall  be  taken  and  f^led  by  the  judge 
or  clerk  in  Uke  manner,  and  may  be  read  by  either  party 
on  the  trial. 

Strudwick  V.  Brodnax.  83-401;  Com'rs  v.  Lemly,  85-341. 


330  CODE  OF  CIVIL  PEOCEDUEE.     [Chap.  10. 

Sec.  583.  Testimony  of  party  may  be  rebutted.  C.  C.  P., 
s.  336. 

The  examination  of  the  party  thus  taken  may  be  re- 
butted by  adverse  testimony. 

St^ud\^■icii  v.  Brodnax,  83 — iOl ;  Com'rs  v.  Lemly,  85—341. 

Sec.  584.  Eflfect  of  refusal  to  testify.    C.  C.  P.,  s.  337. 

If  a  party  refuses  to  attend  and  testify,  as  in  the  four 
preceding  sections  provided,  he  may  be  punished  as  for  a 
contempt,  and  his  complaint,  ansvs^er  or  reply  may  be 
stricken  out. 

Phillips  V.  TrezevaDt,  70—176;  Strudwick  v.  Brodnax,  83 — 401;  Com'rs 
V.  Lemly,  85—341. 

Sec.  685.  Testimony  of  a  party  not  responsive  to  the  inqui- 
ries may  be  rebutted  by  tlie  oath  of  the  party  calling 
him.    C,  C.  P.,  s.  338, 

A  party  examined  by  an  adverse  party,  as  in  this  chap- 
ter provided,  may  be  examined  on  his  own  behalf,  sub- 
ject to  the  same  rules  of  examination  as  other  vv^it- 
nesses.  But  if  he  testify  to  any  new  matter,  not  respon- 
sive to  the  inquiries  put  to  him  by  the  adverse  party,  or 
necessary  to  explain  or  qualify  his  answers  thereto,  or 
discharge  when  his  answers  would  charge  himself,  such 
adverse  party  may  offer  himself  as  a  witness  on  his  own 
behalf  in  respect  to  such  new  matter,  subject  to  the  same 
rules  of  examination  as  other  witnesses,  and  shall  be  so 
received. 

Taylor  V.  Taylor,  76 — 433;  Strudwick  v.  Brodnax,  83—401;  Com'rs  v. 
Lemly,  85—341. 

Sec.  586.  Persons  for  whoni  action  is  brought  or  defended 
may  be  examined.     C.  C.  P.,  s.  330. 

A  person  for  whose  immediate  benefit  the  action  is 
prosecuted  or  defended,  though  not  a  party  to  the  action, 
may  be  examined  as  a  witness,  in  the  same  manner,  and 
subject  to  the  same  rules  of  examination,  as  if  he  were 
named  as  a  party. 

Strudwick  v.  Brodnax,  83—401;  Com'rs  v.  Lemly,  85—841. 

Sec.  587.  E.Yamination  of  co-plaiutiflf  or  co-defendant.  C. 
C.  P.,  s.  340. 

A  party  may  be  examined  on  behalf  of  his  co-plaintiff 
or  of  a  co-defendant  as  to  any  matter  in  which  he  is  not 
jointly  interested  or  liable  with  such  co-plaintiff  or  co 
defendant,  and  as  to  which  a  separate  and  not  joint  ver- 


Chap.  10.]    CODE  OF  CIVIL  PEOCEDURE.  231 

diet  or  iudgment  can  be  rendered.  And  ]ie  may  be  com^ 
pelled  to  attend  in  the  same  manner  as  at  the  nistancB  ot 
an  adverse  party;  but  the  examination  thus  taken  shall 
not  be  used  in  behalf  of  the  party  exammed.  And 
whenever  one  of  several  plaintiffs  or  defendants  who  are 
ioint  contractors,  or  are  united  in  interest  is  examined 
by  the  adverse  party,  the  other  of  such  plaintiffs  oi  de- 
feVdants  may  offer  himself  as  a  witness  to.  the  same 
cause  of  action  or  defence,  and  shall  be  so  received. 

■  Bovkin  V.  Boyldn,  70-362;  Penny  v.  Brink,  75-68;  Strudwick  v. 
B'rodnax,  83—401;  Com'isv.  Lemly,  85—341. 

Sec.  588.  Husband  and  wife  witnesses.    C.  C.  P.,  s.  341. 
1866,  c.  40,  s.  2. 

In  any  trial  or  inquiry  in  any  suit,  action  or  proceeding 
in  any  court,  or  before  any  person  having  by  law  or  con- 
sent of  parties,  authority  to  examine  witnesses  or  hear 
evidence,  the  husband  or  wife  of   any  party  thereto,  or 
of  any  person  in  whose  behalf  any  such  suit,  action  or 
proceeding  is  brought,  prosecuted,  opposed  or  defended 
shall     except  as   hereinafter  stated,  be   competent  and 
compellable  to  give    evidence,    as    any  other  witness, 
on  behalf  of  any  party  to  such   suit,  action  or  proceed- 
ing       Nothing    herein    shall    render    any    husbaiid    or 
wife  competent  or  compellable  to  give  evidence  for  or 
against  the  other,  in  any  criminal  action  or  proceeding 
(except  to  prove  the  fact  of  marriage  m  case  of  bigamy  , 
or  in  any  action  or  proceeding  in   consequence  ot  adul- 
terv  or  many  action  or  proceeding  for  divorce  mi  account 
of  adultery  (except  to  prove  the  fact  of  marriage),  or  m 
any  action  or  proceeding  for  or  on  account  of  criminal 
conversation.     No  husband  or  wife  shall  be  compellable 
to  disclose  any  confidential  communication  made  by  one 
to  the  other  during  their  marriage. 

Ricev  Keith  63-319;  Barringer  v.  Barringer,  69-179;  Boykin  v.  Boy- 
kiu,  70-263;  Home  v.  Home,  75-101 ;  Taylor  v.  Taylor,  76-433;  Com'rs 
V.  Lemly,  85—341. 


I 


232 


CODE  OF  CIVIL  PEOCEDURE.     [Chap.  10. 


CHAPTER  SIX. 


EXAMINATION  OF  WITNESSES. 


Section. 

589.  Interest  not  to  exclude  a  wit- 

ness. 

590.  When  party  may  be  examined 

and  -wlien  not. 
691.  In  Tvliat  actions,  for  what  sums, 
and  witliin    wliat    time  booli 


Section. 

accounts  may  be  proved  by  a 

party. 
593.  nooli  accounts,  how  proved  by 

executors  and  admiuistralors. 
593.  Copies  of  account  aie  evidence 

unless  notice  given  to  produce 

orlsinal. 


Sec.  589.  Interest  not  to  exclude  a  witness.    C.  C.  P.,  s. 
342. 

No  person  offered  as  a  witness  shall  be  excluded  by- 
reason  of  his  interest  in  the  event  of  the  action. 

State  V.  Mcintosh,  04 — 607;  Isenhour  v.  Iscnhour,  04 — 640;  Gray  v. 
Cooper,  65—183;  Murray,  v.  Blacliledge,  71 — 492;  Ballard  v.  Ballard,  75— 
190;  Lewis  v.  Fort,  75—251;  Mason  v.  McCormicIj,  75 — 263;  Taylor  v.  Tay- 
lor, 76 — 433;  Gidncy  v.  Logan,  79—214;  Pepper  v.  Broughlon,  80—251. 

Sec.  590.  When  party  may  he  examined  and  when  not. 

Upon  the  trial  of  an  action,  or  the  hearing  upon  the 
merits  of  a  special  proceeding,  a  party  or  a  person  in- 
terested in  the  event,  or  a  person  from,  through  or  under 
whom  such  a  party  or  interested  person  derives  his  inter- 
est or  title  by  assignment  or  otherwise,  shall  not  be  ex- 
amined as  a  witness  in  his  own  behalf  or  interest,  or  in 
behalf  of  the  party  succeeding  to  his  title  or  interest 
against  the  executor,  aihninistrator  or  survivor  of  a  de- 
ceased person,  or  the  committee  of  a  lunatic,  or  a  person 
deriving  his  title  or  interest  from,  through  or  under  a 
deceased  person  or  lunatic,  by  assignment  or  otherwise, 
concerning  a  personal  transaction  or  communication  be- 
tween the  witness  and  tlie  deceased  person  or  lunatic; 
except  where  the  executor,  administrator,  survivor,  com- 
mittee or  person  so  deriving  title  or  interest  is  examined 
in  his  own  behalf,  or  the  testimony  of  the  lunatic  or 
deceased  person  is  given  in  evidence  concerning  the  same 
transaction  or  communication. 

Whitcsides  v.  Green,  64—807;  Merony  v.  Avery,  04 — 813;  Peoples  v. 
Maxwell,  64—313;  Stale  v.  Mcintosh,  64—607;  Isenhour  v.  Iscnhour,  64— 
640;  grower  v.  Ilughes,  64—643;  Halyburton  v.  Harshaw,  65—88;  Gray  v. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  233 

Cooper  65—183;  Islcr  v  Dewey,  67-93;  Howerton  v.  Lattimer,  68-370; 
Andrews  V.  McDanicl,  68-385;  Gilmer  v.  McNairy,  69-335;  Bryant  v. 
Morris  69-444;  Redman  v.  Ecdman,  70-257;  Lcggett  v.  Glover,  71-211; 
Woodhouse  V.  Simmons,  73-30;  Henry  v.  Willard,  73-35;  Jaclcson  v. 
Evans  73-128;  Murpby  v.  Ray,  73-588;  Lewis  v.  Wake  Co.,  74—194; 
McCanless  v.  Rsynolds,  74-801;  Thomas  v.  Kelly,  74-416;  Kirk  v.  Barn- 
hart  74-653-  Penny  v.  Brink,  75-68;  Ballard  v.  Ballard.  75-190;  Lewis 
V  Fort  75-251;  Mason  v.  McCormick,  75-263;  Taylor  v.  Taylor,  76— 
433;  Bushee  v.  Surles,  77-62;  Peebles  v.  Stanley,  77-243;  March  v. 
Ver'ble,  79—19;  Lawrence  v.  Hyman,  79-209;  Gidney  v.  Logan,  79—214; 
Shields  V.  Smith,  79-517;  Mason  v.  McCormick,  80-244;  Pepper  v. 
Broughton,  80-251;  Gregg  v.  Hill,  80-255;  Molyneux  v.  Huey,  81-106 
Latham  v.  Dixon,  82—55;  Williams  v.  Johnston,  82— 28-i;  Tabor  v.  Ward, 
83—291;  Wilkerson  v.  Buchanan,  83—296;  Thompson  v.  Humphrey,  83— 
416;  Ma'cay,  ex  parte,  84-63;  Perry  v.  Jackson,  84-230;  McLearly  v.  Nor- 
ment,  84—235;  Gulley  v.  Macy,  84—434;  Syme  v.  Broughton,  85—307; 
Muu'v.  Martin,  85—406;  Hawkins  v.  Carpenter,  85—483;  Allen  v.  Gilkey, 
86—64;  Morgan  v.  Bunting,  86—66;  Sumner  v.  Candler,  86—71;  Lock- 
hartv  Bell,  86—443;  Gidoey  v.  Moore,  86—484;  McKee  v.  Lineberger,  87— 
181;  Love's  Ex'rs  v.  Harbin,  87-249;  Grier  v.  Cegle,  87—377;  Johnston  v. 
Jones,  87—393.     C.  C.  P.,  s.  343. 

Sec.  591.  In  wbat  actions,  for  what  sums,  and  within 
what  time  hoolc  accounts  may  be  proved  by  a  party. 
R.  C,  c.  15,  s.  1.    1756,  c.  57,  ss.  2,  G,  7.    C.  C.  P.,  s. 

343  (a.) 

When  any  person  shall  bring  an  action  upon  a  contract, 
or  shall  plead,  or  give  notice  of,  a  set-off  or  counter-claim 
for  goods,  wares  and  merchandise  by  him  sold  and  de- 
livered, or  for  work  done  and  performed,  he  shall  file  his 
account  with  his  complaint,  or  with  his  plea  or  notice  of 
set-off  or  counter-claim,  and  if  upon  the  trial  of  the  issue, 
or  executing  a  writ  of  inquiiy  of  damages  in  such  action, 
he  shall  declare  upon  his  oath  that  the  matter  in  dispute 
is  a  book  account,  and  that  he  hath  no  means  to  prove 
the  delivery  of  any  of  the  articles  which  he  then  shall 
propose  to  prove  by  himself  but  by  this  book;  in  that 
case  such  book  may  be  given  in  evidence,  if  he  shall  make 
out  by  his  own  oath  that  it  doth  contain  a  true  account 
of  all  the  dealings,  or  the  last  settlement  of  accounts  be- 
tween himself  and  the  opposing  party,  and  that  all  the 
articles  therein  contained,  and  by  him  so  proved  were 
bona  fide  delivered,  and  that  he  hath  given  the  opposing 
party  all  just  credits;  and  such  book  and  oath  shall  be 
received  as  evidence  for  the  several  articles  so  proved  to 
be  delivered  within  two  years  next  before  the  commence- 
ment of  the  action,  but  not  for  any  article  of  a  longer 


234  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

standing,   nor  for  any  greater  amount  than  sixty  dol- 
lars. 

Mitchell  V.  Clarke,  Mar.,  3.5;  Carlton  v.  Lawry,  Mar.,  26;  Thomcguex 
V.  Bell,  Mar.,  44;  Kitchen  v.  Tyson,  3  Mur.,  314;  Stcvtlie  v.  Greenlee, 
1  Dev.,  317;  Colbert  v.  Piercy,  3  Ired.,  77;  McAVilliam  v.  Cosby,  4  Ired., 
110;  Adkinson  V.  Simmons,  11  Ired.,  416;  Alexander  v.  Smoot,  13  Ired., 
461;  Waldo  V.  Jolly,  4  Jon.,  173;  Pannellv.  Scroggin,  8  Jon.,  408;  Bland  v. 
Warren,  65—373;  Leggett  v.  Glover,  71—211. 

Sec.  592.  Book  accounts,  how  proved  by  executors  and 
administrators.  K.  C,  c.  15,  s.  3.  1756,  c.  57,  s.  2. 
1796,  c.  465.   C.  C.  P.,  s.  343  (b.) 

In  actions  where  executors  and  administrators  are 
parties,  such  book  account  for  all  articles  delivered 
within  two  years  previous  to  the  death  of  the  deceased 
may  be  proved  under  the  like  circumstances,  rules  and 
conditions;  and  in  such  case,  the  executor  or  adminis- 
trator may  i^r-ove  by  himself  that  he  found  the  account 
so  stated  on  the  books  of  the  deceased;  that  there  are  no 
witnesses,  to  his  knowledge,  capable  of  proving  the  de- 
livery of  the  articles  which  he  shall  propose  to  prove  by 
said  book,  and  that  he  believes  the  same  to  be  just,  and 
doth  not  know  of  any  other  or  further  credit  to  be  given 
than  what  is  therein  mentioned  :  Provided,  that  if  two 
years  shall  not  have  elapsed  previous  to  the  death  of  the 
deceased,  the  executor  or  administrator  may  prove  the 
said  book  account,  if  the  suit  shall  be  commenced  within 
three  years  from  the  delivery  of  the  articles  :  Provided 
further,  that  whenever  by  the  aforesaid  proviso  the  time 
of  proving  a  book  account  in  manner  aforesaid  is  enlarged 
as  to  the  one  party,  to  the  same  extent  shall  be  enlarged 
the  time  as  to  the  other  party. 

Stevelie  v.  Greenlee,  1  Dev.,  317;  Coxe  v.  Skeen,  3  Ired.,  443. 

Sec.  593.  Copies  of  account  are  evidence  unless  notice 
given  to  produce  original.    R.  C,  c.  15,  s.  3.   1756,  c. 

57,  s.  3.  C.  C.  P.,  s.  343('-.) 
A  copy  from  the  book  of  accounts  proved  in  manner 
above  directed  may  be  given  in  evidence  in  any  such 
action  or  setoff  as  "aforesaid,  and  shall  be  as  available  as 
if  such  book  had  been  produced,  unless  the  party  oppo- 
sing such  proof  shall  give  notice  to  the  adverse  party  or 
his  attorney,  at  the  joining  of  the  issue,  or  ten  days  be- 
fore the  trial,  that  he  will  require  the  book  to  be  pro- 
duced at  the  trial;  and  in  that  case  no  such  copy  shall  be 
admitted  as  evidence. 

Morgan  v.  Bass,  3  Ired.,  243. 


Chap,  lu.]    CODE  OF  CIVIL  PEOCEDUEE. 


235 


CHAPTEE  SEVEN. 
MOTIONS  AND  OEDEES. 


Sectiok. 

594.  Definition  of  an  order;  motions, 
how   and  where  made;  com- 


Section. 

pelling  parties  to  testify;  de- 
cision on  motion. 

595.  Notice  of  motion. 


Sec  594.  Definition  of  an  order;  motions,  liowand  wliere 
made;  compelling  parties  to  testify;  decision  on  motion. 
C.  C.  P.,  ss.  344,  345.  . 

Every  direction  of  a  court  or  judge,  made  or  entered  ui 
writing,  and  not  included  in  a  judgment,  isdenommated 
an  order:  .,      .  , . 

(1)  An  application  for  an  order  is  a  motion; 

(2)  Motions  maybe  made  to  a  clerk  of  a  superior  court, 
or  to  a  judge  out  of  court;  except  for  a  new  trial  on  the 

™(3)  Motions  must  be  made  within  the  district  in  which 
the  action  is  triable;  .  -       i  a 

(4)  A  motion  to  vacate  or  modify  a  provisional  remedy, 
and  an  appeal  from  an  order  allowing  a  provisional  rem- 
edy  shall  have  preference  over  all  other  motions; 

(5)  When  any  party  intends  to  make  or  oppose  a  motion 
in  any  court  of  record,  and  it  shall  be  necessary  for  hini 
to  have  the  affidavit  of  any  person  who  shaU  have 
refused  to  make  the  same,  such  court  may,  by  order,  ap- 
point a  referee  to  take  the  affidavit  or  deposition  of  such 
person.  Such  person  may  be  subpoenaed  and  compelled 
to  attend  and  make  an  affidavit  before  such  referee,  the 
same  as  before  a  referee  to  whom  it  is  referred  to  try  an 

(6)'Whenever  a  motion  shall  be  made  in  any  cause  or 
proceeding  in  any  of  the  courts,  to  obtain  an  injunction 
order  order  of  arrest,  or  warrant  of  attacliment, 
granted  in  any  such  case  or  proceeding,  or  a  mot^ion  to 
vacate  or  modify  the  same  is  made,  it  shall  be  the  duty  of 
the  judge  before  whom  such  motion  is  made,  to  render 
and  make  known  his  decision  on  such  motion  within  ten 
days  after  the  day  upon  which  such  motion  shall  or  may 
be  submitted  to  him  for  decision. 

Foard  V  Alexander,  64-69;  Erwin  v.  Lowery,  64-331 ;  Williams  v. 
Rockwell  64-335;  Jarman  v.  Saunders,  64-367;  Churcli  v.  Furniss,  64- 
059-  Council  v.  Rivers,  65-54;   Foreman  v.  Bibb,  65-138;  McDowell  v. 


236  CODE  OF  CIVIL  PROCEDUEE.     [Chap.  10. 

Asbury,  60 — 444;  Seymour  v.  Cohen,  67—345;  Birdsey  v.  Harris.  68—93; 
Deal  V.  Palmer,  68—215;  Childs  v.  Martin,  68—307;  Clayton  v.  Jones,  68 
— 497;  Aycock  v.  Harrison,  71—433;  Mauncy  v.  Montgomery  County,  71 
-^86;  Longv.  Cole,  73—20;  Sutton  v.  McMillan,  73— 102;  Faxton  v.  Wil- 
liamson, 73—125;  Lyon  v.  McMillan,  73—393;  Folk  v.  Howard,  73—537; 
Lord  V.  Beard,  79—5;  Askew  v.  Capehart,  79—17;  Skinner  v.  Bland,  87— 
168. 

Sec.  595.  Notice  of  motion.    C.  C.  P.,  s.  346. 

When  notice  of  a  motion  is  necessary,  it  must  be  served 
ten  days  before  the  time  appointed  for  the  hearing;  but 
the  court  or  judge  may,  by  an  order  to  show  cause,  pre- 
scribe a  shorter  time. 

Wheeler  v.  Lawrence,  81 — 65. 


CHAPTER  EIGHT. 
COMPUTATION  OF  TIME. 

Section. 

596.  Time,  how  computed. 

Sec.  596.  Time,  how  computed.    C.  C.  P.,  s.  348. 

The  time  within  which  an  act  is  to  be  done,  as  herein 
provided,  shall  be  computed,  by  excluding  the  first  day 
and  including  the  last.  If  the  last  day  be  Sunday,  it  shall 
be  excluded. 

Branch  v.  R.  R,  Co.,  77—347;  Keeter  v.  R.  R.  Co.,  86—346. 


CHAPTER  NINE. 
NOTICES  AND  FILING  AND  SEEVICE  OF  PAPERS. 

Section.  I  Section. 

597.  Notices  and  other  papers,  how  1  nesses;  when  this  section  does 

served;     subpoena    for   wit-  '  not  apply. 

Sec.  597.  Notices  and  other  papers,  how  served;  subpoena 
for  witnesses.    C.  C.  P.,  ss.  349,  353.     1876-'7,  c.  64, 

s.  1. 

Notices  shall  be  in  writing;  notices  and  other  papers 
may  be  served  on  the  party  or  his  attorney  personally, 
where  not  otherwise  provide^  in  tliis  chapter: 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  237 

(1)  If  upon  an  attorney,  service  may  be  made  during 
his  absence  from  his  office,  by  leaving  the  paper  with 
his  clerk  therein,  or  with  a  person  havmg  charge  tliereot; 
or  when  there  is  no  person  in  the  office,  by  leavmg  it, 
between  the  hours  of  six  in  the  morumg  and  nine  m  the 
evening,  in  a  conspicuous  place  in  the  office:  or,  it  it_  be 
not  opeii  so  as  to  admit  of  such  service,  then  by  leaving 
it  at  the  attorney's  residence,  with  some  person  ot  suit- 
able age  and  discretion;  -,     ,      1       •       ii,„ 

(2)  If  upon  a  party,  it  may  be  made  by  leavmg  the 
paper  at  his  residence,  between  the  hours  of  six  in  the 
morning  and  nine  in  the  evening,  with  some  person  ot 
suitable  age  and  discretion;  ,  ,      .        .    f,      /i„„ 

(3)  If  upon  a  person  who  cannot  be  found  after  due 
diligence,  or  who  is  not  a  resident  of  this  state  the  ser- 
vice thereof  may  be  made  by  the  publication  of  the  notice 
once  a  week  for  four  successive  weeks  in  some  newspaper 
published  in  the  county  from  which  the  notice  is  issued; 
and  if  no  newspaper  be  published  therein,  then  m  some 
newspaper  published  within  the  judicial  district;  and  the 
proof  of  service  shall  be  as  is  required  by  law  in  the  case 
of  a  service  of  a  summons  by  pubhcation; 

(4)  Service  of  a  subpoena  for  witnesses  may  be  made 
by  a  sheriff,  coroner  or  constable,  and  proved  by  the  re- 
turn of  such  officer,  or  the  service  may  be  made  by  any 
person  not  a  party  to  the  action,  and  proved  by  his  oath. 
A  subpoena  for  witnesses  need  not  be  signed  by  the  clerk 
of  the  court;  it  shall  be  sufficient  if  subscribed  by  the 
party  or  by  his  attorney.  This  section  shall  not  apply  to 
the  service  of  a  summons,  or  other  process,  or  ot  any 
paper,  to  bring  a  party  into  contempt. 

Faison  v.  Mcllwaine,  72—312;  Surratt  v.  Crawford,  87—372. 


CHAPTER  TEN. 
DUTIES  OF  SHEEIFFS  AND  COKONEES. 

Section.  I  Section. 

598.  Duty  of  sheriff  and  coroner  in  and  how  enforced;  may  return 

serving  or  executing  process,  '  process  by  mail. 

Sec  598.  Duty  of  sheriff  and  coroner  in  serving  or  execut- 
ing process",  and  liow  enforced;  may  return  process  by 
mail.    C.  C.  P..  s.  354. 

Whenever  the  sheriff  may  be  required  to  serve  or  ex- 


i 


238 


CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 


ecute  any  summons,  order  or  judgment,  or  to  do  any- 
other  act,  he  shall  be  bound  to  do  so  in  like  manner  as 
upon  process  issued  to  him,  and  shall  be  equally  liable  in 
all  respects  for  neglect  of  duty;. and  if  tlie  sheriff  be  a 
party,  the  coroner  shall  be  bound  to  perform  the  service, 
as  he  is  now  bound  to  execute  process  where  the  sheriff 
is  a  party;  and  this  chapter  relating  to  sheriffs  shall 
apply  to  coroners  when  the  sheriff  is  a  party.  Sheriffs 
and  coroners  may  return  process  by  mail.  Their  liabili- 
ties in  respect  to  the  execution  of  process  shall  be  as 
presciibed  by  law. 

Thompson  v.  Berry,  64—79;  Tate  v.  Powe,  64^644;  Jones  v.  Gupton, 
65—48. 


CHAPTER  ELEVEN. 
POWERS  OF  EEFEEEES. 

Section. 

599.  Powers  of  referees. 

Sec.  599.  Powers  of  referees.    C.  C.  P.,  s.  356. 

Every  referee  shall  have  power  to  administer  oaths  in 
any  proceeding  before  him,  and  shall  have  generally  the 
power  vested  in  a  referee  by  law. 


CHAPTER  TWELVE. 


MISCELLANEOUS  PEOVISIONS. 


Section. 

603.  Time  for  publication  of  notices, 
bow  computed. 


Section. 

600.  Paper  lost  or  withheld,  copy  to 

be  used. 

601.  Where  undertaliings  to  be  filed. 

Sec.  600.  Paper  lost  or  witlilield,  copy  to  be  used.    C.  C. 
P.,  s.  357. 

If  an  original  pleading  or  paper  be  lost  or  withheld  by 
any  person,  the  court  may  autliorize  a  copy  thereof  to  be 
filed  and  used  instead  of  the  original. 


Chap.  10.]    CODE  OF  CIVIL  PROCEBURE.  239 

Sec.  601.  Where  undertakings    to  be  filed.     C.  C.  P.,  s. 

Thtvxrious  undertakings  required  to  be  given  by  chap- 
tpj  en  must  be  filed  wiih 'the  clerk  of  the  court,  unless 

sheritf ,  or  filed  as  thereui  provided. 

Sec.  602.  Time  for  publication  of  notices,  how  computed. 

Th'p^time  for  publication  of  legal  notices  shall  be  com- 
puted s  as  to  exclude  the  first  day  of  P^blicauoa  and  n> 
elude  the  day  on  which  the  act  or  event  of  which  notice 
is  gi?en  is  to  happen,  or  which  completes  the  full  period 
required  for  pubhcation. 


TITLE  XV. 
ACTIONS  IN  PARTICULAR  CASES. 

Chan      I     Actions  in  Place  of  Scire   Facias,    Quo 
■       ■        Warranto,  and  of  Informations  in  the 
Nature  of  Quo  Warranto. 
11.    Mandamus. 
III.    Actions  for  Waste  a^^d  Nuisance. 


CHAPTER  ONE; 

AHTIONS  IN  PLACE  OF  SCIEE  PACIAS,   QUO  WAR- 
RANTO   AND  OF  INFORMATIONS  IN  THE 
NATURE  OF  QUO  WARRANTO. 

I  Sectiok. 
m'Zre  facias  and  guo  .mrranJm.  Action  may  be  brought  by  at- 
bolSed,   and    this     chapter  torney  genera,     '";-;«; 

,    ..,     '.  charter,  by  direction    ot   the 

substituted.  T      •  ,  . 

Legislature. 


240 


CODE  OF  CIVIL  PROCEDURE.    [Chap.  10. 


Sectiok. 

613.  Damages,  how  recoveri'd. 

614.  One  action  against  several  per- 

sons, claiming  office  or  fran- 
chise. 

615.  Penalty  for  usurping  office  or 

friincUise,  how  awarded. 

616.  Trial  in  such  cases  to  be  expe- 

dited. 

617.  Judgment  of  forfeiture  against 

a  corporation. 

618.  Costs  against    corporation    or 

persons  claiming  to  be  such, 
how  collected. 

619.  Restraining  corporation  and  ap- 

p(  intment  of  receiver. 

620.  Copy  of  judgment  roll,  where 

to  be  filed. 

621.  Action  for  forfeiture  of  prop- 

erty to  state. 


Section. 

605.  Action  to  annul  a  corporation, 

when  and  how  brought  by 
the  attorney  general,  by  leave 
of  the  supreme  court. 

606.  Leave,  how  obtained. 

607.  Action    upon    information    or 

complicint. 

608.  When  attorney  general  to  grant 

leave  to  private  relator  to 
bring  action. 

609.  Complaint  and  arrest  of  defen. 

dant,  in  action  for  usurping 
an  office. 

610.  Judgment  in  such  actions. 

611.  Assumption  of  otfice  by  rela- 

tor, when  judgment  in  his 
favor. 

612.  Proceedings  against  defendant 

on  refusal  to  deliver  books  or 
papers. 

Sec.  603.  Scire  facias  and  qtio  ivarranto  abolished  and 
this  chapter  substituted.    C.  C.  P.,  s.  3G2.    R.  C,  c.  26, 

ss.  5,  25. 

The  writ  of  scire  facias,  the  writ  of  quo  warranto,  and 
proceedings  by  information  in  the  nature  of  qtio  tvar- 
ranto,  are  abohshed;  and  the  remedies  obtainable  in 
those  forms  may  be  obtained  by  civil  actions  under  this 
sub-chapter. 

Parker  v.  Shannonhouse,  1  Phil.,  209;  Mardre  v.  Felton,  1  Phil.,  279; 
Riddick  v  Hinton,  1  Phil.,  291;  Bingliam  v.  Ricliardson,  1  Phil.,  315; 
Kingsbury  V  Huglies,  1  Pliil.,  32S;  Thompson  v.  Berry,  64—79;  Jones  v. 
Gupton,  05—48;  McDowell  v.  Asbury,  60 — 444;  Lewis  v.  Johnston,  69— 
392;  Brown  v.  Turner,  70—93;   Saunders  v.  Galling,  81—298. 

Sec.  604.  Action  may  be  brought  by  attorney  general  to 
vacate  a  charter,  by  direction  of  the  legislature.  C.  C. 
P.,  s.  363. 

An  action  may  be  brought  by  the  attorney  general,  in 
the  name  of  the  state,  whenever  the  legislature  shall  so 
direct  against  a  corporation  for  the  purpose  of  vacating 
or  annulling  the  act  of  incorporation,  or  an  act  renew- 
ing its  corporate  existence,  on  the  ground  that  such  act 
or  renewal  was  procured  upon  some  fraudulent  sugges 
tion,  or  concealment  of  a  material  fact,  by  the  person  in- 
corporated, or  by  some  of  them,  or  with  their  knowledge 
and  consent. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE,  241 

Sec.  605.  Action  to  annul  a  corporation,  when  and  how 
brought  l>y  the  attorney  general,  by  leave  ot  the  su- 
preme court.    C.  C.  P.,  s.  364.    B.  C,  c.  26,  s.  25. 

An  action  may  be  brought  by  the  attorney  general  m 
the  name  of  the  state,  on  leave  granted  by  the  supreme 
court  or  a  justice  thereof,  for  the  purpose  of  vacatmg 
the  charter  or  annulhng  the  existence  of  a  corporation, 
other  than  municipal,  whenever  such  corporation  shall— 

(1)  Offend  against  the  act  or  acts,  creating,  altering,  or 
renewing  such  corporation;  or, 

(2)  Violate  any  law  by  which  such  corporation  shall 
have  forfeited  its  charter  by  abuse  of  its  powers;  or, 

(3)  Whenever  it  shaU  have  forfeited  its  privileges  or 
franchises  by  failure  to  exercise  its  power;  or 

(4)  Whenever  it  shall  have  done  or  omitted  ariy  act 
which  amounts  to  a  surrender  of  its  corporate  rights, 
privileges  and  franchises;  or,  „        ,  .  •  -i 

(5)  Whenever  it  shall  exercise  a  franchise  or  privilege 
not  conferred  upon  it  by  law ;  ^      ^ 

(6)  For  non-user  of  its  powers  for  two  or  more  years 

consecutively;  .„,-,,      ,-,        i.  t ^^ 

(7)  For  insolvency,  manifested  by  the  return  of  an  ex- 
ecution unsatisfied;  upon  a  judgment  against  the  com- 
pany docketed  in  the  superior  court  of  the  county  where 
it  has  its  entry  or  principal  place  of  business. 

And  it  shall  be  the  duty  of  the  attorney  general,  when- 
ever he  shall  have  reason  to  beheve  that  any  of  these 
acts  or  omissions  can  be  established  by  proof ,  to  apply 
for  leave,  and  upon  leave  granted,  to  bring  the  action,  in 
every  case  of  public  interest,  and  also  in  every  other  case 
in  which  satisfactory  security  shaU  be  given  to  indem- 
nify the  state  against  the  costs  and  expenses  to  be  m- 
curred  thereby. 

Sec.  606.  Leave,  how  obtained.    C.  C.  P.,  s.  365. 

Leave  to  bring  the  action  may  be  granted  upon  the  ap- 
phcation  of  the  attorney  general;  and  the  court  or  jus- 
tice may,  at  discretion,  direct  notice  of  such  application: 
to  be  o-iven  to  the  corporation  or  its  officers,  previous  to 
granting  such  leave,  and  may  hear  the  corporation  in 
opposition  thereto. 

Lo£tin  V.  Sowers,  65—251. 
Sec.  607.  Action  upon  information  or  complaint.   C.  C.  P., 
s.  366.  -    . 

An  action  may  be  brought  by  the  attorney  general  in 
the  name  of  the  state,   upon  his  own  information,  or 
11 


242  CODE  OF  CIVIL  PEOCEDURE.     [Chap.  10. 

upon  the  complaint  of  any  private  party,  against  the 
parties  offending  in  the  following  cases: 

(1)  When  any  person  shall  usurp,  intrude  into,  or  un- 
lawfully hold  or  exercise  any  public  office,  civil  or  mili- 
tary, or  any  franchise  within  this  state,  or  any  office  in 
a  corporation  created  by  the  authority  of  this  state;  or 

(2)  When  any  public  officer,  civil  or  mihtary,  shall 
have  done  or  suffered  an  act  which,  by  law,  shall  make 
a  forfeiture  of  his  office;  or, 

(3)  When  any  association  or  number  of  persons  shall 
act  within  this  state  as  a  corporation,  without  being  duly 
incorporated. 

Culver  V.  Eggers,  63—630;  Patterson  v.  Hubbs,  65—119;  Loftin  v. 
Sowers,  65—251;  Clark  v.  Stanley,  66—59;  Howerton  v.  Tate,  6()— 231; 
Ellis  V.  Deaf  and  Dumb  and  the  Blind,  68 -423;  Nichols  v.  McKee,  68 — 429; 
Welker  v.  Bledsoe,  68-457;  Howerton  v.  Tate,  68—546;  Brown  v.  Turner, 
70—93;  Hargrove V.  Hilllard,  72—169;  Hargrove  v.  Hunt,  73—34;  Norfleet 
V.  Staton,  73—546;  Moore  v.  Jones,  76—183;  People  v.  Heaton,  77—18; 
Saunders  V.  Catling,  81—298;  Davis  v.  Moss,  81—303;  State  v.  Norman, 
82—687;  Eliason  v.   Coleman,  86—335;  Deloatch  v.  Rogers,  86—307. 

Sec.  608.  When  attorney  greneral  to  grant  leave  to  private 
relator  to  bring  action.  1874-'5,  c.  70,  s.  1.  1881, 
c.  330. 

When  application  shall  be  made  to  the  attorney  general 
by  a  private  relator  to  bring  such  an  action,  he  shall 
gi-ant  leave  for  the  same  to  be  brought  in  the  name  of  the 
state,  upon  the  relation  of  such  applicant,  upon  his  ten- 
dering to  the  attorney  genei'al  satisfactorj^  security  to 
indemnify  the  state  against  aU  costs  and  expenses, 
which  may  accrue  in  consequence  of  the  bringing  of  such 
action. 

Patterson  v.  Hubbs,  65 — 119;  Loflin  v.  Sowers,  65 — 251;  Howerton  v. 
Tate,  66—231;  Ray  v.  Castle,  79—580;  Saunders  v.  Gulling,  81—398. 

Sec.  609.  Complaint  and  arrest  of  defendant,  in  action 
for  usurping  an  office.  C.  C.  P.,  s.  369.  1883,  c.  102. 
Whenever  such  action  shall  be  brought  against  a  per- 
son for  usurping  an  office,  the  attorney  general,  in  addi- 
tion to  the  statement  of  the  cause  of  action,  may  also 
set  forth  in  the  complaint  the  name  of  the  person  right- 
fully entitled  to  the  office,  with  a  statement  of  iiis  right 
thereto;  and  in  such  case,  upon  proof  by  affidavit  that 
the  defendant  has  received  fees  or  emoluments  belonging 
to  the  office,  and  by  means  of  his  usurpation  thereof,  an 
order  shall  be  granted  by  a  judge  of  the  superior  court 
for  the  arrest  of  such  defendant,   and  holding  him  to 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  243 

bail;  and  thereupon  he  shall  be  arrested  and  held  to  bail 
in  the  manner,  and  with  the  same  eflEect,  and  subject  to 
the  same  rights  and  Uabilities,  as  in  other  civil  actions 
where  the  defendant  is  subject  to  arrest. 

Patterson  V.  Hubbs,  65-119;  Tale  v.  Morehead,  65-681;  Howcrton  v. 
Tate  70-161;  Threadgill  v.  Railway  Co.,  73-178;  Bladen  Co.  v.  Clarke, 
73-355;  Norfleet  v.  Staton,  73-355;  State  v.  Long,  76-354;  Vann  v.  Pip- 
kin, 77—408;  Saunders  v.  Galling,  81—398. 

Sec.  GIO.  Judgment  in  such  actions.    C.  C.  P.,  s.  370. 

In  every  such  case  judgment  shall  be  rendered  upon 
the  right  of  the  defendant,  and  also  upon  the  right;  of  the 
party  so  alleged  to  be  entitled,  or  only  upon  the  right  ot 
the  defendant,  as  justice  shall  require. 

People  V.  Bledsoe,  68—457;  Hargrove  v.  Hilliard,  73—169. 

Sec.  611.  Assumption  of  office,  &c.,  by    relator,    when 
judgment  in  his  favor.    C.  C.  P.,  s.  37 1. 

If  the  judgment  be  rendered  upon  the  right  of  the  per- 
son so  alleged  to  be  entitled,  and  tlie  same  be  in  favor  of 
such  person,  he  shall  be  entitled,  after  taking  the  oath  ot 
office,  and  executing  such  official  bond  as  may  be  required 
by  law,  to  take  upon  himself  the  execution  ot  the  othce; 
audit  shaU  be  his  duty,  immediately  thereafter  to  de- 
mand of  the  defendant  in  the  action  all  the  books  and 
papers  in  his  custodv,  or  within  his  power,  belonging  to 
the  office  from  which  he  shall  have  been  excluded. 

Sec.   612.  Proceedings  against  defendant  on  refusal   to 
deliver  hoolts  or  papers.    C.  C.  P.,  s.  372. 

If  the  defendant  shall  refuse  or  neglect  to  deliver  over 
such  books  or  papers,  pursuant  to  the  demand,  he  shall 
be  guilty  of  a  misdemeanor,  and  the  same  proceedings 
shall  be  had,  and  with  the  same  effect,  to  compel  delivery 
of  such  books  and  papers  as  are  prescribed  by  law. 

Sec.  613.  Damages,  how  recovered.    C.  C.  P.,  s.  373. 

If  judgment  be  rendered,  upon  the  right  of  the  person 
so  alleged  to  be  entitled,  in  favor  of  such  person,  he  may 
recover  by  action  the  damages  which  he  shall  have  sus- 
tained by  reason  of  the  usurpation  by  the  defendant  of 
the  office  from  which  such  defendant  has  been  excluded. 

Howerton  V.Tate,  70—161;  Swain  v.  McRac,  80—111;  Jones  v.  Jones,  80 
—127. 

Sec.  614.  One  action  against  several  persons  claiming  of- 
fice or  franchise.    C.  C.  P.,  s.  374. 

Where  several  persons  claim  to  be  entitled  to  the  same 


244  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

office  or  franchise,  one  action  may  be  brought  against  all 
such  persons,  in  order  to  try  their  respective  rights  to 
such  office  or  franchise. 

Sec.  615.  Penalty  for  usurping   office  or  franchise  liow 
awarded.    K.  C,  c.  95,  s.  1.    C.  C.  P.,  s.  375. 

When  the  defendant,  whether  a  natural  person  or  a. 
corporation,  against  whom  such  action  shall  have  been 
brought,  shall  be  adjudged  guilty  of  usurping  or  intrud- 
ing into,  or  unlawfully  holding  or  exercising  any  office, 
franchise  or  privilege,  judgment  shall  be  rendered  that 
such  defendant  be  excluded  from  such  office,  franchise  or 
privilege,  and  also  that  the  plaintiff  recover  costs  against 
such  defendant.  The  court  may  also,  in  its  discretion, 
fine  such  defendant  a  sum  not  exceeding  two  thousand 
dollars,  winch  fine,  when  collected,  shall  be  paid  into  the 
treasury  of  the  state. 

Nichols  V.  McKee,  68—429. 

Sec.  616.  Trial  in  such  cases  to  be  expedited.    1874:'-5, 
c.  173. 

All  actions  to  try  the  title,  or  right  to  any  office,  state,^ 
county  or  municipal,  shall  stand  for  trial  at  the  return 
term  of  the  summons,  if  a  copy  of  the  complaint  shall 
have  been  served  with  the  summons,  at  least  ten  days- 
before  the  return  day  thereof;  and  it  shall  be  the  duty  of 
the  judges  to  expedite  the  trial  of  such  actions,  and  to 
give  them  precedence  over  all  other  actions,  civil  or  crim- 
inal. But  it  shall  be  unlawful  to  appropriate  any  pubhe 
funds  to  the  payment  of  counsel  fees  in  any  such  ac- 
tion. 

Nichols  V.  McKee,  68—429. 

Sec.  617.  Judgment  of  forfeiture  against  a  corporation^ 
C.  C.  P.,  s.  376. 

If  it  shall  be  adjudged  that  a  corporation  against  which 
an  action  shall  have  been  brought,  has  forfeited  by 
neglect,  abuse,  or  surrender,  its  corporate  rights,  privi- 
leges and  franchises,  judgment  shall  be  rendered  that  the 
corporation  be  excluded  from  such  corporate  rights, 
privileges  and  franchises,  and  that  the  corporation  be 
dissolved. 

Sec.  618.  Costs  against  corporation  or  persons  claiming  to 
be  such,  how  collected.    C.  C.  P.,  s.  377. 

If  judgment  be  rendered  in  such  action  against  a  cor- 
poration, or  against  persons  claiming  to  be  a  corporation. 


Chap.  10.]    CODE  OF  CIVIL  PROCEDUEE.  245 

the  court  may  cause  the  costs  therein  to  be  collected  by 
eiecut"on"agJinst  the  persons  clai^-g  to  be  a_  c^^^^^^^ 
tion  or  by  attachment  or  process  agamst  the  dnectois  or 
other  officers  of  such  corporation. 
Sec.  619.  Restraiuing   corporation  and   appointment  of 

receiver.    C.  C  P.,  s.  378. 

When  such  iudgment  shall  be  rendered  aganist  a  cor- 
DoratioS  the  court  shall  have  the  power  to  restram  the 
corporation  to  appoint  a  receiver  of  its  property  and  to 
S  an  account,  and  make  a  distribution  thereof  among 
its  SitorT;  and  it  shall  be  the  duty  of  the  attorney  gen- 
eral immediktely  after  the  rendition  of  such  judgment  to 
institute  proceedings  for  that  purpose. 

Sec.  620.  Copy  of  judgment  roll,  where  to  be  filed.    C.  C. 
P    s  370 

Upon  the  Vendition  of  such  judgment  against  a  cor- 
poXn,  it  shall  be  the  duty  of  the  ^ttoiW  genera^  to 
cause  a  copy  of  the  judgment  roll  to  be  forthwith  hied 
in  the  office  of  the  secretary  of  state. 
Sec.  621.  Action  for  forfeiture  of  property  to  state.    C.  C. 

P.,S.  381.  ,        1       11   r,       * 

Whenever  any  property,  real  or  personal,  shall  be  for- 
feited to  the  state,  or  to  any  officer  for  its  use,  an  action 
for  the  recoverv  of  such  property,  alleging  the  grounds 
of  the  forfeiture,  may  be  brought  by  the  propef  officer  m 

"Zr„rT™"S:93.  Steele  v.  But.e.W  Co..  70-137.  Belmont 
V.  RUey,  71—260. 


CHAPTEE  TWO. 
MANDAMUS. 

flFCTioN  1  Section. 

m.  Applications  for  writs  of  man.\m.  Manner  in  which  ^""^^ons  for 
"  y  app  cations  for  writs  of  man- 

damus. "'  '         ,    ,,  . 

I  damua  sliall  issue. 

Sec.  622.  Application  for  writs  of  mandamus.    1871-'2, 

All  'applications  for  writs  of  vinndamus  shall  be  made 
by  summons  and  complaint,  and  the  complaint  shall  be 
duly  verified. 


246  CODE  OF  CIVIL  PROCEDURE.     [Chap.  10. 

Sec.  623.  Manner  in  which  summons  for  application  for 
writs  o{ mandamus  shall  issue.    187 1-'2,  c.  75,  ss.  2, 3. 

In  aU  such  applications,  when  the  plaintiff  seeks  to  en- 
force a  money  demand,  the  summons,  pleadings  and 
practice  shall  be  the  same  as  is  prescribed  for  civil  actions. 
When  the  plaintiff  seeks  relief  other  than  the  enforce- 
ment of  a  money  demand,  the  summons  shall  be  made 
returnable  before  a  judge  of  the  superior  court  at  cham- 
bers, or  in  term  at  a  day  specified  in  the  summons,  not 
less  than  ten  days  after  the  service  of  the  summons  and 
complaint  upon  the  defendant;  at  which  time  the  court, 
except  for  good  cause  shown,  shall  proceed  to  hear  and 
determine  the  action,  both  as  to  law  and  fact:  Provided, 
that  when  an  issue  of  fact  is  raised  by  the  pleading,  it 
shall  be  the  duty  of  the  court,  upon  the  motion  of  either 
party,  to  continue  the  action  until  said  issue  of  fact  can 
be  decided  by  a  jury  at  the  next  regular  term  of  the 
court. 

Worthy  v.  Barrett,  63—199;  Pegram  v.  Com'rs,  64—557;  Carson  v.  Com'rs, 
64—566;  Gooch  v.  Gregory ,  65— 142 ;  Railroad  v.  Jenkins,  65—173;  Lutter- 
loh  V.  Com'rs,  65—403 ;  Howerton  v.  Tate,  66—231 ;  Bayne  v.  Jenlsins.  66— 
356;  Sedberry  v.  Com'rs,  66 — 486;  Thomas  v.  Com'rs,  66—522;  Johnston  v. 
Com'rs,  67—101;  Alexander  v.  Com'rs,  67—330;  R.  R.  Co.  v.  Jenkins,  68— 
502;  Steele  v.  Com'rs,  70—187;  "Webb  v.  Com'rs,  70—307;  Uzzle  v.  Com'rs, 
70—564;  Edwards  V.  Com'rs,  70—571;  Belmont  v.  Riley,  71—260;  Gas  Light 

Co.  V.  Raleigh,  75—274;  Moore  v.  Jones,  76—182;  Moore  v.  Jones,  76 

188;  Fry  v.  Com'rs,  82—304. 


CHAPTER  THREE. 
ACTIONS  FOE  WASTE  AND  NUISANCE. 


Section. 

624.  Waste,  how  remediable. 

625.  For  and  against  whom  an  ac- 

tion for  waste  lies. 

626.  Tenant  for  life  aliening,   still 

liable. 

627.  Action  by   tenant   against    co- 

tenant. 


Section. 

628.  Heirs  shall  have  the  action. 

629.  Judgment  for    treble  damages 

and  place  wasted. 

630.  Remedies  for    injuries  hereto- 

fore   remediable    by    writ  of 
nuisance. 


Sec.  624.  Waste,  how  remediable.    C.  C.  P.,  s.  383. 

VVrongs,  remediable  by  the  old  action  of  waste,  are 
subjects  of  action  as  other  wrongs;  and  the  judgment 


Chap.  10.]    CODE  OF  CIVIL  PROCEDURE.  247 

may  be  for  damages,  forfeiture  of  the  estate  of  the  party 
offending,  and  eviction  from  the  premises 

Shields  V.  Lawrence,  73-43;  McCormick  v.  Nixon.  83-113. 

Sec.  625.  For  and  against  whom  an  action  for  waste  lies, 
k  C.,c.ll«,s.l.  52  Hen.  Ill,  c.  33.  6  Edw.  I,  c.  IG. 
20  Edw.  I.  s.  2.     11  Hen.  VI,  c.  5. 

In  all  cases  of  waste,  an  action  shall  lie  i^  the  superior 
court  at  the  instance  of  him  in  ^^«f  ^^^^^  "f ^Jj^J^ 
against  all  persons  committing  the  same,  f  ^^eh  tena^^^^^ 
for  term  of  hfe  as  tenant  for  term  of  years  and  guaidi 

^Mlentine  v.  Poyner,  2  Hay.,  110;  Ward  v.  Sheppard.  2  Ha^  f  3; 
Pavldns  V.  Coxe,  3  Hay.,  339;  Brown  v.  H.ck,  3  Mur  511;  SI  me  v. 
Wil  ox  1  D.  &  B  Eq.,  631;  Can-  v.  Carr,  4  D.  &  B„  179;  Davis  v.  GUliam, 
Tlied  EC1..308;  DaUon  v.  DaUon,  7  Ircd.  Eq..  197;  ^ '^--•,J'--;: 
Busb.,30;Smiaiv..harpe,Busb.,91;Doz,erv.Gre,ovy,l.Jon.,100^^T^^^^^^^ 

son  V.  Williams.  1  Jon.  Eq..  176;  Bogey  v.  Sbute,  1  Jon.  Eq.,  180,  Gorden 
V.  Lowllier,  75-193;  McCormick  v.  Nixon,  83—113. 

Sec.  026.   Tenant  for  life  aliening,  still  liable.    K.  C,  c. 
il6,s.2.     llHen.VI,c.5.  ...       „ 

Where  tenant  for  hfe  or  years  grants  his  estate  to  an- 
other, and  still  continues  in  the  possession  of  the  lands 
tenements,  or  hereditaments,  an  action  shaU  lie  against 
the  said  tenant  for  life  or  years. 

Southerland  v.  Jones,  6  Jon.,  331. 

Sec.  627.  Action  by  tenant  against  co-tenant.  K.  C,  c. 
116,  s.  4.     13  Edw.  I,  c.  22. 

Where  a  ioint-tenant  or  a  tenant  in  common  commits 
waste,  an  action  shall  he  against  him  at  the  instance  of 
his  co-tenant  or  jouit-tenant. 

Sec.  628.  Heirs  shall  have  the  action.  B.  C,  c.  116,  s.  5. 
^2  Hen.  Ill,  c.  23.  6  Ddw.  1,  c.  6.  11  Hen.  VI,  c.  5. 
20Edw.  I,  St.  2.  ,.  J.  x.    J 

Every  heir  shall  have  his  action  for  waste  committed 
on  lands,  tenements,  or  hereditaments  of  h.s  own  in- 
heritance, as  well  in  the  time  of  his  ancestor  as  in  his 
own. 

Sec  629.  J,idgment  for  treble  damages  and  place  wasted. 
K  C    c   116,  s.  3.    6  Edw.  I,  c.  5.    20  Edw.  I,  st.  2. 

In'au'casesof  waste,  when  judgment  shall  be  against 
the  defendant,  the  court  may  give  judgment  for  thi  ce 
the  amount  of  the  damages  assessed  by  the  ]ury,  and  also 


248    COMMISSIONERS  OF  AFFIDAVITS.     [Chap.  11. 

that  the  plaintiff  recover  the  place  wasted,  if  the  said 
damages  shall  not  be  paid  on  or  before  a  day  to  be  named 
in  the  judgment. 

Sec.  630.  Remedies  for  iujuries  heretofore  remediable  by 
writ  of  nuisance.    C.  C.  P.,  s.  387. 

Injuries  remediable  by  the  old  writ  of  nuisance  are 
subjects  of  action  as  other  injuries;  and  in  such  action 
there  may  be  judgment  for  damages,  or  for  the  removal 
of  the  nuisance,  or  for  both. 


CHAPTER  ELEVEN. 


COMMISSIONEES  OF  AFFIDAVITS. 


Section. 

631.  Clerks    and    commissioners    to 
take  and  certify  affidavits. 

633.  Governor  may  appoint  commis- 

sioners to  take  and  certify 
probate  of  deeds,  &c. ,  in  other 
states  and  foreign  countries. 
683.  Such  commissioner  to  take  an 
oath,  to  be  filed  in  secretary  of 
state's  office;  his  power  and 
autl\ority. 

634.  Commissioners  recorded  by  sec- 

retary of  state  and  certified  to 
clerks  of  courts,  and   there  re- 


Section. 

corded;  certified  copy  of    ap- 
pointment or  removal  evidence. 

635.  Secretary  of  state  to  prepare  list 

of  commissioners. 

636.  List  to  be  printed. 

637.  To  be  printed  in  all  subsequent 

volumes  of  acts  of  assembly. 

638.  List  to  be  conclusive  evidence. 

639.  List  of  revocations  to  be  pub- 

lished. 

640.  Clerk  of  a  court  of  record  in  any 

other  state,  a  commissioner  of 
affidavits  and  deeds. 


Sec.  631.  Clerks  and  commissioners  to  take  and  certify 
affidavits.  R.  C,  c.  21,  s.  1.  1818,  c.  965,  s.  1.  1876-'7, 
c.  207. 

The  clerks  of  the  supreme  and  superior  courts  and 
notaries  public,  are  authorized  to  take  and  certify  affi- 
davits to  be  used  before  any  justice  of  the  peace,  judge 
or  court  of  the  state;  and  the  affidavits  so  taken  by  a 
clerk  shall  be  certified  under  the  hands  of  the  said  clerk, 
and  if  to  be  used  out  of  the  county  where  taken,  also 
under  the  seal  of  the  court  of  which  they  are  respectively 
clerks,  and  if  by  a  notary,  under  his  notarial  seal. 


Chap.  11.]    COMMISSIONERS  OF  AFFIDAVITS.     249 

Sec.  632.  Governor  may  appoint  commissioners  to  take 
and  certify  probate  of  deeds,  &c.,  in  other  states  and 
foreign  countries.  B.  C,  c.  31,  s.  3.  1830,  c.  31,  s. 
1.     1873-'4,  c.  73.     1873-'4,  c.  173. 

The  governor  is  hereby  authorized  to  appoint  and  com- 
mission one  or  more  commissioners  in  any  foreign 
country,  state  or  repubhc;  and  in  such  of  the  states  ot 
the  United  States,  or  in  the  District  of  Columbia  or  any 
of  the  territories,  as  he  may  deem  expedient,  who  shall 
continue  in  office  for  two  years  from  the  date  of  their  ap- 
pointment, unless  sooner  removed  by  the  governor,  and 
shall  have  authority  to  take  the  acknowledgment  or 
proof  of  any  deed,  mortgage  or  other  conveyance  ot  lands, 
tenements,  or  hereditaments  lying  in  this  state,  and  to 
take  the  private  examination  of  married  women,  parties 
thereto,  or  any  other  writings  to  be  used  in  this  state. 
And  such  acknowledgment  or  proof,  taken  or  made  in 
the  manner  directed  by  the  laws  of  this  state,  and  certi- 
fied by  the  commissioner,  shall  have  the  same  force  and 
effect  for  all  purposes,  as  if  the  same  had  been  made  or 
taken  before  any  competent  authority  in  this  state. 


Sec.  633.  Such  commissioner  to  talie  an  oath  to  be  filed  in 
secretary's  ot&ce ;  his  power  and  authority.  K.  C,  c. 
31,  s.  3.    1830,  c.  31,  s.  3. 

Every  commissioner  appointed  by  the  governor  afore- 
said, before  he  shall  proceed  to  perform  any  duty  by 
virtue  of  this  chapter,  shall  take  and  subscribe  an  oath, 
before  a  justice  of  the  peace  in  the  city  or  county  in 
which  such  commissioner  shall  reside,  well  and  faithfully 
to  execute  and  perform  all  the  duties  of  such  commis- 
sioner, according  to  the  laws  of  North  CaroHna ;  which  oath 
shall  be  filed  in  the  office  of  the  secretary  of  state:  And 
thereupon  he  shall  have  full  power  and  authority  to 
administer  an  oath  or  affirmation  to  any  person,  who 
shall  be  willing  or  desirous  to  make  such  oath  or  affirma- 
tion before  him,  and  to  take  depositions  and  to  examine 
witnesses  under  any  commission  emanating  from  the 
courts  of  this  state,  relating  to  any  cause  depending,  or 
to  be  brought  in  said  courts,  and  every  deposition,  affi- 
davit, or  affirmation  made  before  him,  shall  be  as  vahd 
as  if  taken  before  any  proper  officer  in  this  state. 

Young  V.  Rollins,  85-^85. 


250    COMMISSIONERS  OF  AFFIDAVITS.    [Chap.  11. 

Sec.  634.  Commissioners  recorded  by  secretary  of  state 
and  certified  to  clerks  of  courts,  and  there  recorded; 
certified  copy  of  appointment  or  removal,  evidence. 
B.  C,  c.  21,  s.  4.  1830,  c.  31,  s.  4.  1873-'4,  c.  73. 

It  shall  be  the  duty  of  the  governor  to  cause  to  be  re- 
corded by  the  secretary  of  state  the  names  of  the  persons 
who  are  appointed  and  qualified  as  commissioners,  and 
for  what  state,  territory,  county,  city,  or  town;  and  the 
secretary  of  state,  when  the  oath  of  the  commissioner 
shall  be  filed  in  his  office,  shall  forthwith  certify  the  ap- 
pointment to  the  several  clerks  of  the  superior  court  of 
the  state,  who  shall  record  the  certificate  of  the  secretary 
at  length;  and  all  removals  of  commissioners  by  the 
governor,  and  all  commissioners  whose  commissions  have 
expired  by  law,  and  which  have  not  been  renewed,  shall 
be  recorded  and  certified  in  like  manner;  and  a  certified 
copy  thereof  from  the  clerk,  or  a  certificate  of  the  appoint- 
ment or  removal  aforesaid  from  the  secretary  of  state, 
shall  be  sufficient  evidence  of  the  appointment  or  removal 
of  such  commissioner. 

Sec.  635.  Secretary  to  prepare  list  of  commissioners. 
1869-'70,  c.  194,  s.  1.  1873-'4,  c.  73. 

The  secretary  of  state  shall,  as  soon  as  may  be,  prepare 
and  cause  to  be  printed  a  list  of  all  persons  who,  since  the 
first  day  of  January,  one  thousand  eight  hundred  and 
eighty-one,  have  been  appointed  commissioners  of  affi- 
davits and  to  take  the  probate  of  deeds  in  any  foreign 
country  and  in  the  several  states  and  territories  of  the 
United  States  and  in  the  District  of  Columbia,  under  this 
chapter  setting  forth  the  states,  tei-ritory  or  district  or 
foreign  country,  for  which  such  persons  were  appointed, 
and  the  dates  of  their  respective  appointments,  and  he 
shall  send  a  certified  copy  of  said  list  to  every  clerk  of  a 
court  in  this  state. 

Sec.  636.  List  to  be  printed.    1869-'70,  c.  194,  s.  2. 

The  secretary  of  state  shall  cause  a  copy  of  said  list  to 
be  printed  in  each  volume  of  the  acts  of  the  general 
assembly. 

Sec.  637.  To  be  printed  in  all  subsequent  volumes  of  acts 
of  assembly.     1809-'70,  c.  194,  s.  3. 

He  shall  also  have  printed  in  every  subsequent  volume 
of  the  acts  of  the  general  assembly  a  list  as  aforesaid  of 
all  such  commissioners  appointed  since  the  date  of  the 
previous  list. 


Chap.  12.]  COMMON  LAW.  251 

Sec,  638.  List    to  be  conclusive  evidence.  1869-'70,  c. 
194:   s.  4. 

The  list  of  commissioners  so  published  in  any  volume 
of  the  acts  of  the  general  assembly  shall  be  conclusive 
evidence  in  all  courts  of  the  appomtments  therein  stated, 
and  of  the  dates  thereof. 

Sec.  639.  Liist  of  revocations  to  be  published.  1869.'70, 
c.  194,  s.  5.  , 

The  secretary  shall  also  add  to  each  of  said  lists  that 
may  be  published  after  that  provided  for  in  this  chapter 
a  list  of  all  such  commissioners  whose  appointments  have 
been  revoked,  or  have  resigned,  removed  or  died  since  the 
date  of  the  list  previously  published,  as  far  as  the  same 
may  be  known  to  him,  with  the  dates  of  such  revocation, 
resignation,  removal  or  death. 

Sec  640.  Clerk  of  a  court  of  record  in  any  other  state, 
k  commissioner  ofaffldavits  and  deeds.  1879,  c.  77. 

Every  clerk  of  a  court  of  record  in  any  other  state 
^hall  have  full  power  as  a  commissioner  of  affidavits  ana 
deeds  as  is  vested  in  regularly  appointed  commissioners 
of  affidavits  and  deeds  for  the  state. 


CHAPTER  TWELVE. 
COMMON  LAW. 

Section. 

641.  Common  law  declared  to  be  in  force. 

Sec.  641.   Common  law  declared  to  be  in  force.  R.  C,  c 
23.  1715,  c.  5,  ss.  2,  3.  1778,  c.  133. 

All  such  parts  of  the  common  law  as  were  heretofore 
in  force  and  use  within  this  state,  or  so  much  of  the 
common  law  as  is  not  destructive  of,  or  repugnant  to  or 
inconsistent  with,  the  freedom  and  independence  of  this 
state  and  the  form  of  government  therein  established 
and  which  has  not  been  otherwise  provided  for  in  whole 
or  in  part,  not  abrogated,  repealed,  or  become  obsolete, 
are  hereby  declared  to  be  in  full  force  within  this  state. 

Sherrod  v.  Davis,  1  Hav.,  337  (283);  Shaw  v.  Moore,  4  Jon.,  35;  Winder 
v.  Blake,  4  Jon.,  332;  In  the  matter  of  Bryan,  Winst.,  1;  State  v.  Haugh. 
ton,  63—491. 


852  CONSTABLES.  [Chap.  13. 


CHAPTER  THIRTEEN. 
CONSTABLES. 

[Constitution,  Art.  IV.,  s.  24.] 


Section. 

643.  Oath  of  office  to  be  taken. 

643.  Power  and  duty  of  constables. 

644.  Constables  to   execute  notices 

concerning  matters  witbin 
justice's  jurisdiction,  by  de- 
livering copy;  return  evi- 
dence. 


Section. 

6J.5.  Special  constables    in  certain 
cases  appointed  by  justices. 

646.  Vacancies  filled    by   board  of 

commissioners. 

647.  Bond  to  be  given  by  constable  to 

be  registered ;  copy  lo  be  read 
in  evidence;    fees,  bow  paid. 


Sec.  642.  Oath  of  office  to  be  taken.  R.  C,  c.  24,  s.  8. 
1741,  c.  24,  s.  2.    1791,  c.  342,  ss.  1,  2. 

All  constables,  before  they  sliall  be  qualified  to  act, 
shall  take  before  the  board  of  county  commissioners,  the 
oaths  prescribed  for  public  officers,  and  also  an  oath  of 
office. 

State  V.  Lane.  13  Ired.,  253. 

Sec.  643.  Power  and  dnty  of  constables.  R.  C,  c.  24,  s.  9. 
1741,  c.  24,  s.  3.    1790,  c.  330,  s.  1.    1874-'5,  c.  253. 

Constables  are  hereby  invested  with,  and  may  execute 
the  same  power  and  authority  as  they  have  been  by  law 
heretofore  vested  with,  and  have  executed;  and,  in  dis- 
charge of  their  duties,  they  shall  execute  all  precepts  and 
process  of  whatever  nature,  to  them  directed  by  any  jus- 
tice of  the  peace  or  other  competent  authority,  Avithin 
their  county  or  upon  any  bay,  river  or  creek  adjoining 
thereto;  and  the  said  precepts  and  process  shall  be  re- 
turned to  the  magistrates,  or  other  proper  authority. 

State  V.  Ferguson,  76—197. 

Sec.  644.  Constables  to  execute  notices  concerning  mat- 
ters witbin  justice's  jurisdiction,  by  delivering  copy ; 
return  evidence.  R.  C,  c.  24,  s.  10.  1796,  c.  466,  s. 
I.     1800,  c.  557,  s.  1. 

Constables  shall  likewise  execute  within  the  places 
aforesaid,  all  notices  tendered  to  them,  which  are  re- 
quired by  law  to  be  given  for  the  commencement,  or  in 
the  prosecution  of  any  cause  before  a  justice  of  the 
peace;  and  the  service  thereof  shall  be  made  by  deliver- 
ing a  copy  to  the  person  to  be  notified,  or  by  leaving  a 


Chap.  13.]  CONSTABLES.  253 

cop,  at  his  usual  pl-  ^^^^^l^'^S^ Si 
S-a1r.ero\/St.      ;a^^^ 
iZt^L  ^IZS;.n^  aofrto  th,  party  at  w.ose 

instance  it  was  issued. 

Calvert  V.  Peebles,  71-374. 

sec, « j5.  ^^^^'■'■^T:'Tivr.t,::^i:''o!°*'' "' 

"*°";tS  abSc? oVS'S  Int' oK?cSble,  to  any 
same  m  the  absence  '^^i^'-'-V^     ,    ,,  ,     oblieed  to  execute 

fST^tuSf  Kt^uSf;  S  'a^;'cA.table  would 

be  liable  to. 
Calvert  v.  Peebles,  71—374. 

Sec   646.  Vacancies   filled  l>y  board   of   commissioners. 
R  C    c.  24,  s.  6.    1741,  c.  34,  s.  7. 

Upon'the  death,  failure  to  qualify  or  remova^  of  J^^ 
constable  out  of  the  township  m  which  he  was  electea  or 
rp";Sldco.stab.etheb„artofco— ^^ 

SSL^a^raS^tnLfeVctrS-coustables. 

State  V.  Lane,  13  Ired.,  353. 
sec.  647.  Bond  to  be  given  by  constable  to  be  registered; 
copy  to  be  read  in  evidence;  fees,  bow  pa.d     «•  ^^  «' 
34  s.  7.   1818,  c.  080,  s.  1.  1820.  c.  1045.  s.  3.  1833. 
c.  17.    1869-70',  c.  185,  s.  10-  ,  ,       .    .. 

The  board  of  commissioners  of  each  county  shall  re- 
nuirlof  each  constable,  elected  or  appomted  for  a  town- 
ship ?n  entering  upon  the  duties  of  his  ofhco,  to  give  a 
bond  with  good  surety,  Payable  to  the  state  of  North 
Carolina  ill  a  sura  not  less  than  five  hundred  dollars  nor 
more  than  two  thousand  dollars,  conditioned  as  we  or 
?he  faithful  discharge  of  his  duty  as  constable,  as  for  his 
dih^ntlv  endeavoring  to  collect  all  claims  put  into  his 
hands  for  collection,  and  faithfully  paying  over  all  sums 
Son  received,  either  with  or  ^{th°ut  smt  unto^^l^^ 
persons  to  whom  the  same  may  be  ^^e.  Said  bond  sh^ui 
be  duly  proved  and  registered,  and  after  legistiation 
filed  i^n  the  office  of  the  register  of  deeds;  and  certified 
conies  of  the  same  from  the  register's  office  shall  be  re- 
ceived and  read  in  evidence  in  all  actions  and  proceedmgs 
where  the  original  might  be. 


254 


CONTEMPT. 


[Chap.  14. 


The  fees  for  proving  and  registering  the  bond  of  con- 
stable shall  be  paid  by  the  constable. 

Dadev.  Morris,  3  Mur.,  14C;  Governor  v.  Bailey,  3  Hawks,  463;  Gov- 
ernor V.  Franklin,  4  Hawks,  274;  Governor  v.  Coble,  2  Dcv.,  489;  Gover- 
nor V.  Davidson.  3  Dev.,  361;  Governor  v.  Carraway,  3  Dev.,  436;  State  v. 
Halcombe,  2  Ired.,211;  State  v.  Lackey,  3  Ired.,  25;  State  v.  Stepheus,  3 
Ired.,  92;  State  v.  Sugg,  3  Ired.,  9G;  Williams  v.  Williamson,  6  Ired.,  281; 
State  V.  Johnson,  7  Ired.,  77;  Miller  v.  Davis,  7  Ired.,  198;  State  v.  Wall,  9 
Ired.  20;  State  v.  Corpening,  10  Ired.,  58;  State  v.  Outland,  11  Ired..  134; 
State  V.  Hooks,  11  Ired.,  371;  State  v.  McGowan,  12  Ired.,  44;  Morgan  v. 
Home,  Busb.,  25;  State  v.  Bean,  Busb.,  318;  Grier  v.  Hill,  6  Jon.,  572; 
Nixon  V.  Bagby,  7  Jon.,  4;  Hearne  v.  Parker,  7  Jon.,  150;  Dunton  v.Doxey, 
7  Jon.,  222;  Keid  v.  UumpLreys,  7  Jon.,  258;  CUipley  v.  Albea,  8  Jon.,  204; 
Lipscomb  v.  Cheek,  Phil.,  333;  Kivott  v.  Massey,  63—240;  Taylor  v.  Gal 
braitb,  65—409;  Slate  v.  Furguson,  76—199;  State  v.  James,  78 — 155;  King 
T.  McLure.  84^153. 


CHAPTER  FOURTEEN. 


CONTEMPT. 


Section-. 

648.  What  constitutes  contempt. 

649.  Contempt,  its  punishment. 

650.  Court  may  punish  summarily. 

651.  Who  may  punish. 

652.  Commissioners  may  punish. 

653.  When  offender  to  appear  and 
show  cause. 


Section. 

654.  Punish  as  for  contempt. 

655.  Proceedings  as  for  contempt, 
Low  prosecuted. 

656.  What  necessary  to  sustain  pro- 
ceedinar. 


Sec.  048.  What  constitutes  contempt.    1868-'9,  c.   177 
s.  1.    1870-'l,  c.  216,  ss.  3,  3.  ' 

Any  person  guilty  of  any  of  the  following  acts  may 
be  punished  for  contempt: 

(1)  Disorderly,  contemptuous,  or  insolent  behavior 
committed  during  the  sitting  of  any  court  of  justice,  in 
immediate  view  and  presence  of  the  court,  and  directly 
tending  to  inteiTupt  its  proceedings,  or  to  impair  the  re- 
spect due  to  its  authority; 

State  V.  Mott,  4  Jon.,  449. 

(2)  Behavior  of  the  like  character  committed  in  the 
presence  of  any  referee  or  referees,  while  actually  en- 
gaged in  any  trial  or  hearing  pursuant  to  the  order  of  any 


Chap.  14.]  CONTEMPT.  255: 

court,  or  in  the  presence  of  any  jury  while  actually  sit- 
?fng  for  the  trial  of  a  cause,  or  upon  any  inquest  oi  other 

^TsT  AnTb.^1'^^^^^^^^  or  other  disturbance 

dlSt^  tending  to  interrupt  the   proceedings  of    any 
court ; 

State  V.  Mott,  4  Jon.,  449. 

(4^  Wilful  disobedience  of  any  process  or  order  law- 
'tVSftaZcf'^Sy^ffered  by  any  person  to  the 

^T^^^C -SXr^^^^^^^^^^^^  refusal  of  any  per^ 

son  to  be  sworn  as  a  witness,  or  when  so  sworn,  the  like 
refusal  to  answer  any  legal  and  proper  ^"ter^^tor^^^ 

(T)  The  Dublication  of  grossly  inaccurate  reports  ot  tne 
prSeetog's  inSy  courtf about  any  tn.al  or  other^m^^^^^^^^ 
pending  before  said  court,  made  with  intent  to  misiepie 
sent  or  to  bring  into  contempt  the  said  court;  but  no  per- 
son ?an  be  punished  as  for  a  contempt  in  publishing  a 
true,  full  and^air  report  of  any  trial,  argument,  decision 

^^l)^Xbe;ilvfo?  S  auT  oWcer  of  the  court  in  any  offi- 

''fo^Jhrseveml  acts,  neglects  and  omissions  of  duty, 
mSeasances  nisfeasancls,  and  nonfeasances,  above 
rpecSand'described,  shall  be  the  only  acts,  neglects 
and  omissions  of  duty  malfeasances,  misfeasances  and 
nonfeSanTeswhich  sLu  be  the  sublet  of  co^tempo^ 
rmirf  And  if  there  be  any  parts  ot  the  comnion  law 
nowinft?ce  nthis  state  which  recognized  other  acts 
SSects,  omissions  of  duty  malfeasances,  misfe^asa^c^^^ 
and  nonfeasances  besides  those  fPf  ^^f ^^"^„^f '"^^^ 
above,  the  same  are  hereby  repealed  and  annulled. 

Kobinsand  Jackson.  ..  parte,  63-309;  iH  re.  Mo-e  63-39J^Bigg^^^ 
varU  64-203;  ex  parte  Schenck,  65-353;  Kane  v^Hay^ood.  06-1  Bond 
V  Bond  69-7;  Phillips  v.  Trezevant,  70-176;  Dan.c-1  v.  Owen  -2-340 
In  re.  B nnson.  73-278;  Pain  v.  Pain,  80-322;  ^-  -  Dav.s.  81-^-  ^a 
Fontaine  y.  Undenvriters,  83-132;  Cromartie  v  Comrs.  85—11.  Baker 
V.  Cordon,  86-116;  Cromartie  v.  Com'rs,  87-134. 

Sec.  649.   Contempt,  its  punishment.     1868-'9,  c.   177, 

s  3 
Punishment  tor  contempt  for  -atte^  «t  fo*Jn  the 

Ktlhe'dStSf 'tie  Lnrt.      The'fine  not  to  ex- 


256  CONTEMPT.  [Chap.  14. 

ceed  two  hundred  and  fifty  doUars,  and  the  imprisonment 
not  to  exceed  thirty  days. 

Inre.  Rhodes,  G5-518;  Jlorris  v.  Whitehead,  65—037;  /»  r«.  Walker  83 
— O.");  Cromartiev.  Com'rs,  85 — 211.  ' 

Sec.  650.  Court  may  piinisb  summarily.    K.   O     c    XiAr    s 
117.     18«8-'9,  c.  177,s.  3. 

Contempt  committed  in-the  immediate  view  and  pres- 
ence of  the  court  may  be  punished  summarily,  but  the 
court  shall  cause  the  particulars  of  the  offence  to  be 
specified  on  the  record,  and  a  copy  of  the  sam.e  to  be  at- 
tached to  every  committal,  attachment  or  process  in  the 
nature  of  an  execution  founded  on  such  judgment  or 

Ej'.parU  Summers,  5  Ired.,  149;  Weaver  v.  Hamilton,  8  Jon.,  347-  State 
V.  Mott,  4  Jon.,  449;  Piitchard  v.  Oldham,  8  Jon.,  439. 

Sec.  651.  Who  may  punish.    1868-'9,  c.  177,  s.  4. 

Every  justice  of  the  peace,  referee,  commissioner,  clerk 
of  the  superior  court,  inferior  court,  criminal  court  or 
]udgeof  the  superior  court,  or  justice  of  the  supreme 
court,  shall  have  power  to  punish  for  contempt  while 
sitting  tor  the  trial  of  causes  or  engaged  in  official 
Qutiies. 

In  re.  Brinsbn,  73 — 378. 

Sec.  652.  Commissioners  may  punish.    1868-'9,  c.   177 
S.5.  *  ' 

The  board  of  commissioners  of  each  county  shall  have 
power  to  punish  for  contempt  for  any  disorderly  conduct 
or  disturbance,  tending  to  interrupt  them  in  the  transac- 
tion of  their  official  business. 

Sec.  653.    When  oftender    to   appear   and    show   cause 
1868-'9,  c.  177,  s.  6. 

Whenever  the  contempt  shall  not  have  been  committed 
m  the  immediate  presence  of  the  court,  or  so  near  as  to  in- 
terrupt its  business,  proceedings  thereupon  shall  be  by  an 
order  directing  the  offender  to  appear,  within  reasonable 
time,  and  show  cause  why  he  should  not  be  attached  for 
contempt.  At  the  time  specified  in  the  order,  the  person 
charged  with  the  contempt  may  appear  and  answer,  and 
if  he  fail  to  appear  and  show  good  cause  why  he  should 
not  be  attached  for  the  contempt  charged,  he  shall  be 
punished  as  provided  in  this  chapter. 


•Chap.  U.]  CONTEMPT.  257 

Sec  654.  Punish  as  for  contempt.    1868-'9,  c.  177,  s.  7. 

Every  court  of  record  shall  have  power  to  punish  as 

for  contempt : 

rn  Anv  clerk  sheriff .  register,  solicitor,  attorney,  coun- 
sellor coWer^o^table,  referee,  or  any  other  person 
in  any  manSer' selected  or' appointed  to  Pf  form  any  min^ 
sterial  or  iudicial  service,  for  any  neglect  or  violation  ot 
duty  oi  any  misconduct  by  which  the  rights  or  reme- 
dies of  anv  party  in  a  cause  or  matter  pending  in  such 
court  ma/ be  defeated,  impaired,  delayed  or  prejudiced 
for  disobedience  of  any  lawful  order  of  any  court  or 
judge  or  any  deceit  or 'abuse  of  any  process  or  order  of 
any  such  court  or  judge; 

Cromartie  v.  Com'is,  85—211. 

(2)  Parties  to  suits,  attorneys,  and  all  other  pe/sons  f or 
the  non-payment  of  any  sum  of  money  ordered  by  such 
court,  m^ca^ses  where  execution  cannot  be  awarded  for 
the  collection  of  the  same; 

(3^  All  persons  for  assuming  to  be  ofacers,  attorneys 
or  counsellors  of  the  court,  and  acting  as  such  without 
authority,  for  receiving  any  property  or  Person  which 
may  be  in  custody  of  any  ofacer  bv  virtue  of  any  order 
S  process  of  the  court,  for  unlawfully  detaining  any  with 
ness  or  partv  to  any  suit,  while  going  to,  remaimng  at, 
OT  returning  from  the  court  where  the  same  may  be  set 
for  trial?  or  for  the  unlawful  interference  with  the  pro- 
ceedings in  any  action; 

(4:)  All  persons  summoned  as  witnesses  in  refusing  or 
neglecting  to  obey  such  summons  to  attend,  be  sworn,  or 
answer,  as  such  witness; 
LaFontaine  v.  Underwriters,  83—133. 

(5)  Parties  summoned  as  jurors  for  impropriety,  con- 
versing with  parties  or  others  in  relation  to  an  action  to 
be  tried  at  such  court  or  receiving  communication  there- 
from; 

(*5)  All  inferior  magistrates,  officers  and  tribunals  foi^ 
disobedience  of  any  lawful  order  of  the  court,  or  for  pro- 
ceeding in  any  matter  or  cause  contrary  to  law  attei  the 
same  shaU  have  been  removed  from  their  jurisdiction; 

(7)  All  other  cases  where  attachments  and  proceedings 
as  for  contempt  have  been  heretofore  adopted  and  prac- 
ticed in  courts  of  record  in  this  state,  to  enforce  the  civil 
remedies  or  protect  the  rights  of  any  party  to  an  action. 


258  CORONEE.  [Chap.  15. 

Sec.  655.  Proceedings  as  /or  contempt,  how  prosecuted. 
1868-'9,  c.  177,  s.  8. 

Proceedings  as  for  contempt  shall  be  prosecuted  and 
carried  on,  as  provided  in  other  special  proceedings. 

Sec.  656.  What  necessary  to  sustain  proceeding.    1868- 
'9,  c.  177,  s.  9. 

To  sustain  a  proceeding  as  for  contempt,  the  act  com- 
plained of  must  have  been  such  as  tended  to  defeat,  im- 
pair, impede,  or  prejudice  the  rights  or  remedies  of  a 
party  to  an  action  then  pending  in  court. 


CHAPTEE  FIFTEEN. 
OOEONEE. 


Section. 

657.  Coroner  to  hold    inquests;    his 

duty;  physician  to  be  summon- 
ed at  the  request  of  the  jury. 

658.  When     there    is    no     sheriff, 

coroner  to  act. 

659.  Jurors     at     coroner's    inquest 

allowed  compensation. 


Section. 

660.  Coroner  to  take  proof  of  num- 

ber of  days  and  mileage  of 
jurors;  audited  by  board  of 
commissioners. 

661.  Bond  given  and  recorded  an- 

nually ;  oath  taken. 

662.  Bonds,  to  be  registered. 


Sec.  657.  Coroner  to  hold  inquests;  his  duty;  physician  to 
be  summoned  at  therequestof  the  jury.  K.  C.,  c.  25,  s. 
4.    4  Edw.  I.  St.,  s.  4.     1881,  c.  263.     1881,  c.  308. 

It  shall  be  the  duty  of  the  several  coroners,  whenever 
it  is  made  to  appear,  by  the  affidavit  of  some  responsible 
person,  that  the  deceased  probably  came  to  his  death  by 
the  criminal  act  or  default  of  some  person  or  persons,  to 
go  to  the  place,  where  the  body  of  such  deceased  person 
is  and  forthwith  to  summon  a  jury  of  six  good  and  law- 
ful men;  whereupon  the  coroner,  upon  oath  of  said  juiy 
at  the  said  place,  shall  make  inquiry  when,  how,  and  by 
what  means  such  deceased  person  came  to  his  death,  and 
his  name  if  it  was  known,  together  with  all  the  material 
circumstances  attending  his  death.  And  if  it  shall  appear 
that  the  deceased  was  slain,  then  who  was  guilty  either 
as  principal  or  accessory,  if  known,  or  in  any  manner  the 
cause  of  his  death.     And  as  many  persons  as  are  found 


Chap.  15.]  CORONER.  259 

culDable,  by  inquisition  in  manner  aforesaid,  shall  be 
taken  and  delivered  to  the  sheiitf  and  committed  to  jail; 
and  snch  persons  as  are  found  to  know  anything  of  the 
matteis  aforesaid  and  are  not  culpable  themselves  shall 
be  bound  in  a  recognizance  with  suthcient  surety  to 
appear  at  the  next  superior  court  to  give  evidence;  of  all 
which  matters  and  things  the  coroner  must  note  up  a 
record  of  his  inquisition  signed  by  the  lurors,  and  return 
the  same  to  the  next  superior  court  of  his  proper  county. 
Tt  shall  be  the  duty  of  every  coroner,  when  the  jury  in- 
vestigating the  case  shall  require  it,  to  summon  a  phy- 
Sian  or  surgeon,  who  shall  be  paid  for  his  attendance 
and  service  such  sum  as  the  court  may  deem  reasonable. 

State  V.  KnigUt.  84—789;  State  v.  Morgan,  85-581;  Ibid,  86-733. 

Sec  658.  Where  there  is  no  sheriff,  coroner  to  act.   K.  C, 
e.  25,s.5.    1779,  c.  156,  s.l.  ,.^    .   . 

If  at  any  time  there  be  no  person  properly  quahhed  to 
act  as  sheriff  in  any  county,  the  coroner  of  such  county 
is  hereby  required  to  execute  all  process,  cml  or  criminal 
lawfully  issuing  on  judgments,  orders,  or  sentences  of 
any  court,  and  in  all  other  things  to  act  as  sheriff,  until 
some  person  shall  be  appointed  sheriff  in  said  county;  and 
such  coroner  shall  be  under  the  same  rules  and  regula- 
tions, and  subject  to  the  same  forfeitures,  fines,  and  pen- 
alties as  sheriffs  are  by  law,  for  neglect  or  disobedience 
of  the  same  duties. 

Wiltkowsky  V.  Wasson,  69-38;  .Edwards  v.  Tipton,  77-222;  Teargin 
V.  Siler,  83—348. 

Sec.  659.  Jurors  at  coroner's  inquest  allowed  compensa- 
tion.    1881,  c.  53,  s.  1.  . 

All  persons  who  may  be  summoned  to  act  as  jurors  in 
any  Inquest  held  by  a  coroner  over  dead  bodies,  and  who, 
in  obedience  thereto,  shall  appear  and  act  as  such  jurors, 
shall  be  entitled  to  the  same  compensation  in  per  diem 
and  mileage  as  is  allowed  by  law  to  jurors  acting  in  the 
superior  courts. 

Sec.  660,  Coroner  to  take  proof  of  number  of  clays  and 
mileage  of  jurors;  audited  by  board  of  commissioners. 
1881,  c.  53,  s.  3. 

The  coroners  of  the  respective  counties  are  hereby 
authorized  and  empowered  to  take  proof  of  the  number 
of  davs  of  service  of  each  juror  so  acting  and  also  ot  the 
number  of  miles  traveled  by  such  juror  in  going  to  and 
returning  from  such  place  of  inquest,  and  shall  hie  with 


260 


CORPORATIONS. 


[Chap.  16. 


the  board  of  commissioners  of  the  county  a  correct  ac- 
count of  the  same,  which  shall  be,  by  such  commission- 
ers, audited  and  paid  in  the  manner  provided  for  the  pay 
of  jurors  acting  in  the  superior  courts. 

Sec.  661.  Bond  given  and  renewed  annually;  oath  taken. 
B.  C,  c.  25,  s.  2.  1791,  c.  342,  ss.  1,  2.  1820,  c.  1047, 
ss.  1,  2. 

Every  coroner  shall  execute  an  undertaking  for  the 
faithful  discharge  of  the  duties  of  his  office  with  good 
surety,  in  the  sum  of  two  thousand  dollars,  (or  in  a 
larger  sum  if  required  by  the  court,)  payable  to  the  State 
of  North  Carohna  and  approved  by  the  board  of  county 
commissionere,  which  he  shall  annually  renew,  or  no 
longer  hold  said  office.  He  shall  also  take  the  oaths  of 
public  officers  and  an  oath  of  office. 

Mabry  v.  Turrentine,  8  Ii-ed.,  201. 

Sec.  662.  Bonds  to  be  registered,    1860-'61,  c.  18. 

All  official  bonds  of  coroners  shall  be  duly  proved,  cer- 
tified, registered  and  filed  as  sheriffs'  bonds  are  required 
to  be;  and  certified  copies  of  the  same,  from  the  register's 
office,  shall  be  received  and  read  in  evidence  in  the  hke 
cases,  and  in  like  manner  as  such  copies  of  sheriffs'  bonds 
are  now  allowed  to  be  read  in  evidence. 

Greene  V.  Wynne,  66—530;  Heilig  v.  Lemly,  74r— 250;  Yeargin  t.  Slier, 
83—348;  State  v.  Knight,  84—739. 


CHAPTER  SIXTEEN. 


COEPOEATIONS. 


Section. 

663.  General    powers    of    corpora- 

tions. 

664.  By  laws  to  determine  the  man- 

ner of  calling  and  conducting 
meetings,  &c. 

665.  First    meeting,    how    notified 

wlien  not  provided  for  speci- 
ally. 


Section. 

606.  Land  may  be  held    and  con- 
veyed. 

667.  Corporations  to  continue  three 

years  after  charter  expires,  to 
close  their  concerns. 

668.  When  corporations  expire,  &c., 

receivers  or  trusleesappointed 
to  settle  their  aSairs;  their 
powers. 


Chap.  16.] 


CORPOEATIONS. 


261 


Section. 

669.  Jurisdiction  over  receivers  or 

trustees. 

670.  Receivers  to  pay  debts  and  dis- 

tribute surplus. 

671.  Wliat  executions  to  issue,  aud 

■wliat  may  be  sold. 
673.  Executions  levied  on  personal 
property;  property  may  be 
sold  independent  of  the  fran- 
chise and  real  property  be- 
longing to  such  corporation. 

673.  Who  shall  be  deemed  the  high- 

est bidder. 

674.  Officer  making  sale  to  convey 

the  right  of  fare  and  toll,  and 
deliver  possession  of  property 
connected  with  franchise. 

675.  Purchaser  of  franchise  to  have 

same  remedies  as  corporation 
for  damages. 

676.  Liabilities    of    corporation    to 

continue  after  sale. 

677.  How  certain  business  and  other 

corporations  may  be  formed; 
corporations  to  enter  into  arti- 
cles of  agreement;  what  arti- 
cles to  set  forth. 

678.  Articles  to  be  proved  and  re- 

corded; book  to  be  kept  for 
that  purpose;  index  to  be 
made;  twenty-five  dollars  to 
be  collected  by  clerk  for  ben- 
fit  of  school  fund;  penalty  for 
not  collecting,  &c. ;  sureties 
on  clerk's  bond  responsible, 
and  also  a  misdemeanor. 

679.  Clerk  to  issue  letters  declaring 

its  incorporation ;  notice  there- 
of to  be  published  in  some 
newspaper;  notice  to  set  forth 
substance  of  articles. 

680.  Fees  of  clerk. 

681.  No  dividend,  if  debts  exceed 

two-thirds  of  assets. 
683.  Copies  of  letters  admissible  in 
evidence,  and  prima  facie  evi- 
dence of  incorporation. 


Section. 

683.  Contracts  exceeding  one  hun- 
dred dollars  to  be  in  writing. 

684.  Such  corporations  forbidden  to 
bank. 

685.  How  corporations  may  convey 
by  deed;  void  as  to  existing 
creditors. 

686.  Attorney  gereral  may  bring  an 
action  to  restrain  corponilions 
from  exercising  powers  ni.t 
granted,  and  to  bring  certain 
officers  to  account,  &c. ;  man- 
agers of  corpoiations  person- 
ally liable  for  fraud. 

687.  Corporations,  how  long  to  exist; 
dissolution  not  to  extinguish 
debts. 

688.  Two  years  of  non-user  a  for- 
feiture of  charter. 

689.  Shares  in  corporations  personal 
estate. 

690.  Corporations  may  he'd  not  over 
thirty  years;  when  lauds  may 
be  forfeited  to  the  state. 

691.  Duty  of  grand  jury  and  solici- 
tor. 

G93.  Lands  how  sold,  &c. 

693.  Existing  corporations  affected. 

694.  How  corporations  may  be  dis- 
solved; abuse  of  power;  non- 
user;  insolvency;  criminal 
conviction. 

695.  How  summons  in  such  cases 
served. 

696.  Tax  on  bill  for  incorporatiOQ 
presented  to  general  assem- 
bly. 

697.  Sales  under  deeds  of  trust. 

698.  Corporation    created     by    sale 
shall  succeed  to  rights,  &c.,  , 
and  when  it  expires,  property 
to  go  to  pay  debts,  &c. 

699.  Tax  collectors  to  levy  upon  and 
take  into  possession  property 
of  corporations,  &c..  whether 
in  hands  of  receiver  or  not. 


COEPOEATIONS.  [Chap.  16. 


Section.  Section. 


700.  Not  necessary  to  obtain  order 
of  court  for  the  payment  of 
tax,  if  property  in  hands  of 
receiver. 


701.  Tliis  chapter  to  apply  to  all  cor- 
porations, unless  otherwise  de- 
clared lierein,  or  in  the  chapter 
on  railroads  and  telegraphs. 


Passim,  Railroad  Co.  v.  Leach,  4  Jon.,  340;  Bank  v.  Charlotte,  85—433. 

Sec.  663.    General  powers  of  corporations.    R.  C,  c.  26, 
s.  1.    1850,  c.  50. 

All  corporations  shall,  where  no  other  provision  is 
specially  made,  be  capable  in  their  corporate  name  to  sue 
and  be  sued,  appear,  prosecute  and  defend  to  final  judg- 
ment and  exec-ution,  in  any  courts  or  elsewhere;  to  have 
a  common  seal,  which  they  may  alter  at  pleasure;  to 
elect,  m  such  manner  as  they  shall  determine  to  be 
proper,  all  necessary  officers,  and  to  fix  their  compen.'^a- 
tion  and  define  their  duties  and  obligations;  and  to  make 
by-laws  and  regulations,  consistent  with  the  laws  of  the 
state,  for  then-  own  government,  and  for  the  due  and 
orderly  conducting  of  their  affairs,  and  the  management 
of  their  property. 

Mauney  v.  Motz,  4  Ired.  Eq.,  195:  Thomp.<;on  v.  Guion,  5  .Ion.  Eq.,  113; 
R  R.  Co.  V.  "Wright,  5  Jon.,  304;  R.  R.  Co.  v.  Thompson,  7  Jon.,  887. 

Sec.  664.  By-laws  to  determine  tbe  manner  of  calling 
and  conducting  meetings,  &c.  K.  C,  c.  26  s  3 
1850.  c.  50.  ' 

All  corporations  may,  by  their  by-laws,  where  no  other 
provision  is  specially  made,  determine  the  manner  of 
calling  and  conducting  all  meetings;  the  number  of 
members  that  shall  constitute  a  quorum;  the  number  of 
shares  that  shall  entitle  the  members  to  one  or  more 
votes;  the  mode  of  voting  by  proxy;  tbe  mode  of  selling 
shares  for  the  nonpayment  of  assessments;  and  the 
tenure  of  office  of  the  several  officers;  and  the  manner 
in  which  vacancies  in  any  of  the  offices  shall  be  filled  till 
a  regular  election,  and  they  may  annex  suitable  penalties 
to  such  by  laws,  not  exceeding  in  any  case  the  sum  of 
twenty  doJJai's  for  any  one  offence:  Provided,  that  no 
such  by-law  shall  be  made  by  any  corporation  repugnant 
to  any  provision  of  its  charter:  And  provided  further, 
that  if  the  chief  or  other  authorized  officer  of  any  com- 
pany shall  issue  any  certificate  of  stock  in  any  other  way 
or  to  any  other  person  i^lian  as  provided  by  the  by-laws 
of  said  company,  the  officer  issuing  such  certificate  shall 
be  guilty  of  a  misdemeanor,  and  shall  be  punished  by 


Chap.  16.]  CORPORATIONS.  263 

fine  or  imprisonment,  or  both,  at  the  discretion  of  the 

court. 

sec   665.F..^».ee«n.  h.woo.meawJ.nno.J.- 
pajSr  printed  nearest  to  the  proposed  place  of  meeting. 
Sec.  660.  land  maj  be  heM  and  conveyed.    K.  C,  c.  26. 
Evety  corp'o'ra'tiofmay  hold    lands    to  an    anwunt 

sJ^LVlt:d^*dr5,rcMVreSSt  g".| 

term  than  thirty  years. 

sec.  667.  corporations  to  continue  three  years  after  char- 
ter  expires,  to  close  their  concerns.  R.  C,  c.  ^O,  s.  &. 

All  corporat  ons,  whose  charters  shall  expire  by  their 

£ifnt^ieSes^s\:rnSA!,src''o';;^^ 

ll»iEs„io's;irs?reV™r"V^ 
is|t£^"^ssftosiu>eS"?cp,?|o 

sfe:Si>-rbnr;rtorr|r^^^^ 

continuing  the  £>si"«^^  f"'""'*  ^"'*  "O'P"^"™  '"^^ 

have  been  established.  ,  qi_ar7-  T>nh 

Von  Glalm  v.  Harris,  73-323;  Von  Glahn  v.  DeRosset.  81-467.  Dob. 
son  V.  Simonton,  86—493. 

Sec    668.  When    corporations  expire,  &c.,  receivers   or 
^     ;r«fteesTppointed  to  settle  their  afiairs ;  theu-  powers. 

When  the^charte'r  of  any  corporation  ^l^^^^^  ^^Pif^f^^.^;. 
annulled  as  provided  in  the  precedmg  section,  oi  the  cor- 


26i  COEPOEATIONS.  [Chap.  16. 

poration  is  insolvent,  or  in  imminent  danger  of  insolv- 
ency, or  has  forfeited  its  corporate  rights,  either  for  non- 
user  or  abuser,  or  any  other  cause,  the  judge  of  the 
superior  court  having  jurisdiction  of  the  appointment  of 
receivers  as  provided  in  chapter  ten,  on  apphcatioa 
ot  any  creditor  of  such  corporation,  or  of  any  stock- 
holder or  member  thereof  at  any  time  within  said  three 
years,  or  if  for  insolvency  within  three  years  from  the 
time  of  said  insolvency,  may  appoint  one  or  more  persons 
to  be  receivers  or  trustees  of  and  for  such  coiporation  ta 
take  charge  of  the  estate  and  effects  thereof,  and  to  col- 
lect the  debts  and  property  due  and  belonging  to  the  cor- 
poration, with  power  to  prosecute  and  defend,  in  the 
name  of  the  corporation,  or  in  the  name  of  such  receivers 
or  trustees,  ail  such  actions  as  may  be  necessary  or  proper 
for  the  purpose  aforesaid  ;  and  to  appoint  agents  under 
them,  and  to  do  all  other  acts  which  might  be  done  by 
such  corporation,  if  in  being,  that  may  be  necessary  for 
the  hnal  settlement  of  the  unfinished  business  of  the  cor- 
poration; and  the  powers  of  such  receivers  may  be  con- 
tinued beyond  the  said  three  years,  and  as  long  as  the 
coiu-t  shall  think  necessary  for  the  purposes  aforesaid. 

Fox  V.  Horah,  1  Ired.  Eq.,  358;  Von  Glahn  v.  DcRosset,8l— 4G7;  Attor- 
ney Geneial  v.  Roanoke  Nay.  Co.,  84—705;  Young  v.  Rollins,  85—485- 
Dobson  T.  Simonton,  86 — 493.  '  ' 

Sec.  669.  Jurisdiction  over  receivers  or  trustees.    R.  C 
c.  26,  s.  7.  * 

The  court  or  judge  shall  have  jurisdiction  of  such  appli- 
cation and  of  all  questions  arising  in  the  proceedings 
thereon,  and  make  such  orders,  injunctions  and  decrees 
therein  as  justice  and  equity  shall  require. 

Sec.  670.  Receivers  to  pay  debts,  and  distribute  surplus. 
R.  C,  c.  26,  s.  8. 

The  said  receivers  shall  pay  all  debts  due  from  the  cor- 
poration, if  the  funds  in  their  hands  shall  be  sufficient 
therefor;  and  if  not,  they  shall  distribute  the  same  rata- 
bly among  all  the  creditors,  who  shall  prove  their  debts 
in  the  manner  that  shall  be  directed  by  any  order  or  de- 
cree of  the  court  for  that  purpose;  and  if  there  shall  be 
any  balance  remaining  after  the  payment  of  said  debts, 
the  receivers  shall  distribute  and  pay  the  same  to  and 
among  those  who  shall  be  justly  entitled  thereto,  as  hav- 
ing been  stockholders  or  members  of  the  corporation, 
or  their  legal  representatives. 


Chap.  16  ]  CORPORATIONS.  265 

Sec.  671.  What  executions  to  issue, and  what  maybe  sold. 
K.  C,  c.  Se,  s.  9.     1820,  c.  1050,  s.  4. 

If  any  iudginent  or  d^'cree  shall  be  tendered  against  a 
corporation,  the  plaintiff  may  sue  out  such  executions 
against  the  property  of  a  corporation  as  is  provided  m 
this  code  to  be  issued  against  the  property  of  natural 
persons,  which  executions  may  be  levied  as  well  on  the 
current  money  as  on  the  goods,  chattels,  lands  and  tene- 
ments of  such  corporation;  and  if  the  judgment  or  de- 
cree be  against  any  corporation  authorized  to  receive  tare 
or  tolls,  the  franchise  of  such  corporation,  with  ail  tlie 
rights  and  privileges  theieof,  so  far  as  i elates  to  the  re- 
ceiving of  fare  or  tolls,  and  also  all  other  corporate  prop- 
erty, real  and  personal,  may  be  taken  on  execution  and 
sold  under  the  rules  regulating  the  sale  of  real  estate. 

State  V.  Kives.  5  Ired.,  297;  State  y.  R.  R.  Co.,  72-634;  Gooch  y.  Mc- 
Gee,  83—59;  Attorney  General  y.  Roanoke  Nav.  Co.,  84-705. 

Sec.  672.  Executions  levied  on  personal  property  ;  prop- 
erty may  be  sold  independent  of  the  franchise  and  real 
property  belonging  to  such  corporation. 

When  an  execution  has  been  sued  out  and  levied  upon 
the  personal  property  of  a  corporation,  such  personal 
property  may  be  sold,  and  the  title  to  such  property  shaJl 
pass  to  the  purchaser  at  said  sale,  independent  of  the 
franchise  and  real  estate  of  such  corporation. 

Attorney  General  v.  Roanoke  Nay.  Co.,  84r-705. 

Sec.  673.  Who  shall  be  deemed  the  highest  bidder.  K. 
C.,c.  26,  s.  10. 

In  the  sale  of  the  franchise  of  any  corporation,  the 
person  who  shall  satisfy  the  execution  with  all  costs 
thereon,  or  who  shall  agree  to  take  such  franchise  for 
the  shortest  period  of  time,  and  to  receive  during  that 
time  all  such  fare  and  toll  as  the  said  corporation  would 
by  law  be  entitled  to  demand,  shall  be  considered  as  the 
highest  bidder. 

Taylor  v.  Jerkins,  6  Jon.,  316;  Goocli  v.  McGee,  83-59;  Attorney  Gen- 
eral V.  Roanoke  Nav.  Co.,  84—705. 

Sec.  674.  Officer  making  sale  to  convey  the  right  of  fare 
and  toll,  and  deliver  possession  of  property  connected 
with  Irauchise.    K.  C,  c.  26,  s.  11. 

The  officer  making  sale  shall  by  deed  convey  to  the 
purchaser  all  the  immunities  and  privileges  which  by 
law  belong  to  the  corporation,  so  far  as  relates  to  the 
right  of  demanding  fare  and  toil;  and  the  officer  shall,  ira- 

12 


266  CORPORATIONS.  [Chap.  16. 

mediately  after  such  sale,  deliver  to  the  purchaser  pos- 
session of  all  the  corporate  real  property  connected  with 
the  franchise  belonging  to  such  coporation,  in  whatever 
county  the  same  maybe  situated:  and  the  purchaser  may 
thereupon  demand  and  receive  to  his  own  use  all  the  fare 
and  toll  which  may  accrue  within  the  time  limited  by  the 
term  of  his  purchase  in  the  same  manner  and  under  the 
same  regulations  as  such  corporation  was  before  author- 
ized to  demand  and  receive  the  same. 

Gooch  V.  McGee,  83—59;  Attorney  General  v.  Roanoke  Nav.  Co., 
84—705. 

Sec.  675.  Purchaser  of  a  franchise  to  have  same  remedies 
as  corporation  for  damages.    R.  C,  c.  26,  s.  12. 

Any  person  who  may  have  purchased,  or  shall,  under 
this  chapter,  hereafter  purchase  the  franchise  of  any  cor- 
poration, and  the  assignee  of  such  person  may  recover  in 
such  action  as  the  corporation  might  have  brought,  any 
penalties  imposed  by  law  for  an  injury  to  the  franchise 
or  for  any  other  cause,  and  which  such  corporation  would 
have  been  entitled  to  recover,  durmg  the  time  limited  in 
the  said  purchase  of  the  franchise;  and  during  that  time, 
the  corporation  shall  not  be  entitled  to  prosecute  for  such 
penalties. 

Attorney  General  v.  Roanoke  Nav.  Co.,  84r— 705. 

Sec.  676.  Liabilities  of  corporation  to  continue  after  sale 
R.  C,  c.  26,  s.  13. 

The  corporation  whose  franchise  shall  have  been  sold 
as  aforesaid  shall  in  all  other  respects  retain  the  same 
powers  and  be  bound  to  the  discharge  of  the  same  duties 
and  liable  to  the  same  penalties  and  forfeitures  as  before 
such  sale. 

Sec  677.  How  certain  business  and  other  corporations 
may  be  formed;  corporations  to  enter  into  articles  of 
agreement;  what  articles  to  set  forth.  R.  C,  c.  26,  s. 
14.    1866-'7,  c.  78.     1871-'2,  c.  19J>,  s.  1. 

Any  number  of  persons  not  less  than  three  who  may 
be  desirous  of  engaging  in  any  business  not  unlawful, 
except  building  railroads,  or  banking  or  insurance,  at  any 
place  within  the  state,  may,  if  it  please  them,  become  in- 
corporated in  the  manner  following,  that  is:  such  per- 
sons shall,  by  articles  of  agreement,  under  their  hands 
and  seals,  set  forth  before  the  clerk  of  the  superior  court 
of  the  county  where  such  mining  is  to  be  conducted  or 
manufactory  established,  and  in  case  of  any  other  asso- 
ciation, before  the  clerk  of  the  superior  court  of  the 


Chap.  16.]  CORPORATIONS.  267 

county  where  the  meetings  may  be  held:  1.  The  corpo- 
rate name.  2.  The  busmess  proposed.  3.  The  place 
where  it  is  proposed  to  be  carried  on.  4.  The  length  of 
time  desired,  not  exceeding  thirty  years,  except  as  to 
mining  corporations,  the  term  for  which  shall  not  exceed 
sixty  years  5.  The  names  of  persons  who  have  sub- 
scribed And,  in  the  case  of  mining  and  manufacturmg, 
shall  also  state:  6.  The  amount  of  capital;  and  7.  The 
number  of  shares,  and  the  amount  of  each  (the  same  not 
less  than  fifty  doUars  each). 

Sec.  678.  Articles  to  be  proved  and  recorded;  book  to  be 
kept  for  that  purpose;  index  to  be  made;  twenty-tive 
dollars  to  be  collected  by  clerk  for  benefit  of  school 
fund;   penalty    for   not    collecting,    &c.;    sureties    on 
clerk's  bond  responsible,  and  also  a  misdemeanor. 
The  said  articles  of    agreement,   after    having  been 
proved  by  a  subscribing  witness,  or  acknowledged  before 
the  derk,  shall  be  recorded  by  the  said  clerk  in  a  book  to 
be  kept  for  this  purpose  in  his  office  and  marked  "  record 
of  incorporations,"  and  said  clerk  shall  keep  in  said  book 
an  alphabetical  index  of  the  names  of  the  corporations: 
Provided,  that  the  said  clerk,  before  recording  the  said 
articles  of  agreement,  shall  collect  from  the  persons  sign- 
ing said  articles,  the  sum   of  twenty-five  dollars,  to  be 
paid  by  the  said  clerk  to  the  treasurer  of  the  county,  for 
the  benefit  of  the  pubhc  school  fund  of  the  county;  and 
the  said  clerk  shall,  at  the  next  regular  meeting  of  the 
board  of  commissioners  of  the  county,  report  the  tact  of 
such  collection  and  payment  to  the  treasurer,  to  the  said 
board,  to  the  end  that  the  said  treasurer  may  be  charged 
with   the  same:    Provided  further,    that  if   said   clerk 
shall  fail  to  collect  said  sum  of  twenty  five  dollars,  or 
when  collected,  shall  fail  to  pay  over  the  same  to  the 
county  treas>irer,  or  shall  fail  to  report  the  fact  of  such 
collection  and  payment  to  the  board  of  commissioners, 
he  shall  forfeit  and  pay  the  sum  of  fifty  dollars,  one-half 
to  the  use  of  the  public  school  fund  of  the  county,  and 
the  other  half  to  the  person  suing  for  the  same;  and  his 
sureties  on  his  official  bond  shall  also  be  liable  for  said 
penalty,  and  said  clerk  shall  be  guilty  of  a  misdemeanor, 
and  fined  not  exceeding  fifty  doUars. 

Sec.  679.  Clerk  to.  issue  letters    declaring-  its   incorpora- 
tion; notice  thereof  to  be  published  in  some  newspa- 
per; notice  to  set  forth  substance  of  articles.    K.  C,  c. 
26,s.  16.    1852,  c.67,  ss.  1,  3.     1853,  c.  81,  ss.  1,  3,  3. 
After  the  said  articles  of  agreement  shall  have  been 


2G8  CORPOEATIONS.  [Chap.  16. 

recorded,  the  clerk  under  the  seal  of  the  superior  court, 
shall  issue  letters  declaring  said  persons  and  their  suc- 
cessors to  be,  and  thenceforth  they  shall  be,  a  corpora- 
tion, for  the  purpose  and  according  to  the  terms  pre- 
scribed in  said  articles,  and  shall  cause  notice  tlieroof  to 
be  pubhshed  in  some  newspaper,  if  any  there  be,  printed 
in  the  county,  or  nearest  to  the  place  where  said  articles 
may  be  recorded,  in  which  shall  be  set  forth  the  sub- 
stance of  the  articles,  and  (in  case  of  companies  having 
a  capital,)  the  amount  of  capital,  and  value  of  shares. 

Young  V.  Rollins,  85—485. 

Sec.  680.  Fees  of  clerk.  K.  C.  c.  26,  s.  16.  1853,  c.  67, 
s.  3.    1852,  c.  81,  ss.  4,  10. 

Evei-y  company  incorporated  by  letters  under  articles 
of  agreement,  shall  pay  the  clerk  of  the  superior  court  a 
fee  of  two  dollars  for  taking  the  probate  and  recording 
the  articles  of  agreement,  also  the  expense  of  publica- 
tion, and  one  dollar  for  the  certificate  declaring  its  incor- 
poration. 

Sec.  681.  No  dividend,  if  debts  exceed  two-thirds  of  as- 
sets.   R.  C,  c.  26,  s.  18.    1852,  c.  81,  s.  5. 

No  such  company  shall  declare  any  dividend,  when  its 
debts,  whether  due  or  not,  shall  exceed  two-thirds  of  its 
assets. 

Sec.  682.  Copies  of  letters  admissible  in  evidence,  and 
prima  facie  evidence  of  incorporation.  R.  C,  c.  26, 
ss.  19,  20.    1852,  c.  81,  ss.  7,  8. 

All  f  uch  letters  issued  under  the  authority  of  this  chap- 
ter, and  copies  thereof  certified  by  the  clerk  of  the  supe- 
rior court  of  the  county  where  the  same  are  recorded, 
shall  in  all  cases  be  admissible  in  evidence;  and  the  letters 
aforesaid  shall,  in  all  judicial  proceedings,  be  deemed 
'prima  facie  evidence  of  the  comi^lete  organization  and 
incorporation  of  the  company,  purporting  thereby  to 
have  been  established. 

Sec.  683.  Contracts  exceeding  one  hundred  dollars  to  he 
in  writing.     187 1-'2,  c.  190,  s.  23. 

Every  contract  of  eveiy  corporation,  by  which  a  liabil- 
ity may  be  incurred  by  the  company  exceeding  one  hun- 
dred dollars,  shall  be  in  writing,  and  either  under  the 
common  seal  of  the  corporation  or  signed  by  some  officer 
of  the  company  authorized  thereto. 


CHAP.  16.]  CORPOEATIONS.  269 

sec  684.  SUCH    corporations  forbidden  to  bank.    B.C.. 

ness  may  require. 

sec.  685.  HOW  corporations  may  convey  by  ff^^^^ 
to  existing  creditors.   B.  C,  c.  -o,  s.  — . 

Aiy  corporation  may  fonvey  lands  and  all  other^prop- 
erty  which  i^V^'^^f«":f,^3f.,^//2aledw^th  the  common 
and  sale,  or  other  F^P^^^?^^' f^^  nres  dins;  member  or 
seal  and  signed  by    he  President  oi  P  f  I'J^'""  ^^^ion,  and 

?~r„?:llSSr£rytratteTti;e  .eg&atloa  of 
said  deed,  as  required  by  law. 

Taylor  v.  Heggie,  83—244. 
sec.  686.  Attorney  general  --y^^^Vowe'r^no"  grant'- 

S[^n;;^En^:SSot^-':^=f  *  J,  ^- 
ge;rof Corporations  personally  liable  for  fraud.    B.  C, 
^   oA  a   ««4       1831,  c.  24,  s.  5. 
It -shaU  Le  the  duty  of  *e  f  "mey  J-eral  to  bnng  an 

son  from  exercismg  corporate  fi^ichses  not  &r 


2^0  CORPOEATIONS.  [Chap.  16. 

such  officers  or  trustees  upon  proof  of  gross  misconduct- 
to  secure,  for  the  benefit  of  all  interested,  the  property  or 
tun ds  aforesaid;  to  set  aside  and  resti-ain  improper  ahena- 
tious  thereof,  and  generally  to  compel  the  faithful  per- 
tormance  of  duty,  and  prevent  all  malversation,  pecula- 
tion and  waste.  And  m  case  of  fraud  by  the  president 
directors,  managei-s,  or  stockholdei-s,  in  any  corporation' 
the  court  shall  render  personally  liable  to  creditors  and 
others  injured  thereby  such  of  the  directors,  and  stock- 
holders as  may  have  been  concerned  in  the  fraud. 

Atto.  Gen.  v.  R.  R.  Co.,  6  Ired.,  456;  R.   R  Co.  v.  Leach,  4  Jon    340- 
Bank  v.  Charlotte,  85^433. 

Sec.  687.  Corporations,  how  long  to  exist;  dissolution  not 
to  extinguish  debts.  K.  C,  c.  26,  s.  29.  1836,  c.  10 
s.  1.  * 

No  body  corporate,  hereafter  to  be  established,  shall 
exist  for  a  longer  term  than  sixty  years,  unless  otherwise 
provided  in  the  act  creating  the  same;  but  in  the  case  of 
a  dissolution  of  a  corporation  by  any  judgment  or  decree 
the  debts  due  to,  or  from  it,  shall  not  be  extinguished.    ' 

Von  Glahn  v.  DeRossett,  81 — 467. 

Sec.  688,    Two  years  of  non-user  a  forfeiture  of  charter 
K.  C,  c.  26,  s.  30.     1836,  c.  10,  s.  2, 

When  any  act  shall  have  passed,  or  letters  of  agreement 
as  provided  in  this  chapter,  shall  have  been  recorded' 
creating  a  body  corporate,  and  the  corporators,  for  two 
years,  shall  neglect  or  fail  to  organize  the  company,  and 
carry  into  effect  the  intent  of  the  act;  or  when  organized 
if  they  at  any  time  for  two  years  together  shall  cease  to 
act,  then  such  disuse  of  their  corporate  privileges  and 
powers  shall  be  deemed  and  taken  as  a  forfeiture  of  the 
charter. 

Sec.  689.  Shares  in  corporations  personal  estate.    B.  C 
c.  26,s.  31.  1836,  c.  11.  ' 

The  shares  of  stock  in  all  incorporated  joint-stock  com- 
panies shall  be  deemed  personal  estate. 

Redding  v.  Allen,  3  Jon.  Eq.,  358. 

Sec.  690.  Corporations  may  hold  not  over  thirty  years ; 
when  lands  may  be  forfeited  to  the  state.  1871-'2  c' 
199,  s.  29.  '    * 

Any  corporation  may  take  a  mortgage  upon  any  quan- 
tity of  land  to  secure  a  debt  owing  to  the  corporation, 
and  may  take  a  conveyance  of  any  quantity  of  land  in 


Chap.  16.]  COBPOEATIONS.  2" 

partial  o,-  total  satMaction  of  a  debt  to  *» -'^PfSj 
Ld  may  paichase  f^yj^'-^^fl^^  JSpoJatfon  or  at  any 
e3<|cution  against  »  f "»' o  "\»  ™jPbto,  „£  the  corpo- 
individual  sale  ot  tlie  P':?Pf' >^,";k.,j,,„  .,,„1i  land  to  a 
ration;  but  'he  corporation  pui<,h^mgsu^^^^^^ 
quantity  exceeding,  with  its  ™'?  PiTS  hilding  th4 
?hree  hundi^ed  ^^^^VS  ye^t-,  torn  fte  da?e  ot^such 
rdSe  rranlSiiKlSased  in  excess  of  the 

F4      SSe-o?STst^^^^^^^^^ 
SlorpSatro'n  P-^fW -h  >«ij^n  Hs  pSiSS 

Sf,eV?;--^'eef  f  a"f  IIS^S?^   t  ^Sd 
iJ^rhX'Xl^P^'htfbuUoTlttritationherein 

contained. 

Sec.  691.  Duty  of  grand  jury  aud  solicitor.    1871-'3,  c. 

time  are  he.d   ^Y  f^y  co  p  solicitor,  either 

chapter  and  It  shall  be^^^^^^^^^^^  Proceedings  for 

tT^SSe  oV  a^sS  lands,  and  to  report  the  same 

to  the  governor  from  time  to  time. 

Sec  692.  Lands,  bow  sold,  &c.    1871-'2   c.  199,  s.  31. 

The  lands  recovered  by  the  state  under  this  chapter 

Sec.  693.  Existing  corporations  affected.   1871-'3,c.  199, 
<if>      1  SSI    c    124. 

Al'l  corporations  (except  railroad    mining    manufac- 

nosse4ed  for  a  longer  time  than  th  rty  years  of  any  lands 
?r  tenements,  exceeding  three  ^^-^if^^tTsZh'^ls^^ 
are  required,  within  said  time,  to  dispose  of  such  excess. 


2^2  COEPORATIONS.  [Chap.  16. 

Sec.  694.  How  corporations  may  be  dissolved ;  abuse  of 
^l^^/,l^o^-^^^^^r;  insoUency;  criminal  conviction. 
1871-'3,  c.  199,  ss.  33,  34,  35,  36,  37. 

All  corporations  formed  under  this  chapter  may  be  dis- 
solved by  special  proceedmg,  instituted  by  the  company 
or  by  any  corporator  or  by  any  judgment  creditor,  whosi 

5^??^ n,  r^"^"^  *^  *'■  ^  f^'T^y  "'  '"'^'''^  the  coip'oratiou 
Snti  «^y  «i;Pf^cipal  place  of  business,  shall  be  re- 
turned unsatisfied,  or  by  the  authority  of  the  attorney 

SterlSiotdr??^if  :  ^^^  ''^'^'  ^-  ^^^  —  ^-iZ 

t.,£h/°'"  f""!  ^^"^^  ""{  '^^  P^^^^'s  *o  *he  injury  of  the 
public  or  of  the  corporators,  or  of  its  creditors  or  debtors- 

coiicutlvdy"""'"  ''  '''  P'"'^^  '''  '^'  y^-'^  -  "^«- 

(3)  For  insolvency  manifested  by  the  return  of  an  ex- 
^n^w'i^"'^*,'^^®'^  ""l"?^  ^  judgment  against  the  company, 
docketed  in  the  superior  court  of  the  county  where  it  has 
Its  only  or  prmcipal  place  of  business ;  ^^e^e  ii  nas 

(4)  Upon  any  conviction  of  the  company  of  a  criminal 
offence  if  such  offence  be  persistent.  ^^iimmai 

Sec.  695.  How  summons  in  such  cases  served.    1871.'2 

rnYj!?''v'^^  fr"^^  proceedings  for  the  dissolution  of  a 
corpoiation,  the  summons  shall  be  served  on  the  chief  or 
other  officer  of  the  corporation  authorized  for  that  pur- 
pose as  writs  of  summons  are  required  to  be  in  like  cases 
and  shall  be  served  on  the  corporators,  creditors/deS 
and  others  interested  in  the  affairs  of  the  company  by 
publishing  a  copy  thereof  at  least  weekly  for  not'less 
than  threesuccessive  weeks  in  some  newspaper  printed  in 
the  county  m  which  such  corporationhas  its  only  or  prin 
Si  ^i^T?l  '^",«"^ess,  or  if  there  be  no  such  newspaper 

thednofn/^h"^^  P.°^*^°^  %^°P->^  «f  «^«h  summonses 
the  door  of  the  court  house  of  such  county,  and  publish- 
iBg  a  copy  thereof  for  the  time  and  in  the  manner  afore- 
said in  the  nevvspaper  published  nearest  the  county  seat 
of  the  county  in  which  such  corporation  has  its  only  or 
principal  place  of  business,  or  in  some  newspaper  pub- 
lished m  the  city  of  Raleigh;  and  such  publication  s^hLll 
be  deemed  and  held  sufficient  service  on  all  the  corpora 
tors,  creditors  of,  or  dealers  with,  such  ccrporationS 
all  such  corporators,  creditors  or  dealers  or  other  parties 

paSes  fh^F  f^'Tv,'"^  ^"i  said  proceedings  and  iKone 
paities  thereto  for  themselves,  or  for  others  in  like  in- 


Chap.  16.]  CORPORATIONS.  273 

terest,  under  such  rules  as  the  court  for  the  purpose  of 
justice  shall  prescribe. 

Sec  696.  Tax  on  bills  for  incorporation  presented  to  gen- 
;ral  assembly.    1881,  c.  116.    Sch.  C,  s.  O.    1883.  c. 

E^very  biU  introduced  in  either  ^^^^^^ /^  ,,^1^^/^! 
assembly  to  incorporate  any  company,  or  foi  the  benent 
thereof  or  to  ameSd  any  act  relating  to  such  company  or 
CO ;oiation  shall  be  accompanied  by  a  rece^promh 
^tate  treasurer  for  one  hundred  doUars.  ilus  seciioii 
S  nit  bTconstrued  to  apply  to  benevolent  dwitable 
HtPravv  or  religious  associations,  nor  to  rail  roaa  compa 
Sesnoi  companies  to  bmld  turnpike  roads,  nor  bridges 
over  non-navigable  streams. 

Sec  697.  Sales  under  deeds  of  trust.  1872-'3,  c.  131,  s.  1. 

If  a  sale  be  made  under  a  deed  of  trust  or  mortgage  ex- 
ecuted by  any  corporation  on  all  its  works  and  property, 
indthe?ebe^  a  conveyance  pursuant  thereto  such  sale 
aSd  conveyance  shall  pass  to  the  purchaser  at  the  sale 
not  only  the  works  and  property  of  the  corporation  as  they 
were  aTtheti„,e  of  miintnhe  deed  of  t™stormo.^^^ 
hnt  any  works  which  the  corporationmay  attei  that  time 
and  beLrthe  sale  have  QO-^ructed  and  a^l  other  px^p^ 
crty  of  which  it  may  be  possessed  at  the  time  ot  tne  saie 
otifer  than  debts  du^  to  it.   Upon  such  conveyance  to  the 
purchaser,  the  said  corporation  shallji  so /acto 
solved,  and  the  said  purchaser  shall  to/j'/^.^^^,^^^ 
corporation  by  any  name  which  may  be  set  f  o  th  ^^  the  ^aid 
rnnvevance   or  in  any  writing  signed  by  him  and  recoi 
S^n  the  'sanie  mamer  in  which  the  conveyance  shaU 
be  recorded. 

GoocU  V.  McGee,  83—59. 
Sec    698.  Corporation  created   by  sale   shall  succeed  to 
;i!^hts  &c.,  and  when  it  expires,  property  to  go  to  pay 
debts,'  &c.  1872-'3,  c.  131,  ss.  3,  3.  .  v. 

The  corporation  created  by,  or  in  consequence  of,  such 
sale  and  cTveyance  shall  succeed  to  aU  such  franchises 
Shts  and  privileges,  and  perform  all  such  duties  as 
would  have  been,  ov  should  have  been,  performed  by  the 
Tst  conSfon.'but  for  such  sale  and  conveyance,  save 
oit  that  the  co;«,ation  so  created,  shall  not  be  enti  led 
?o  the  debts  due  fo  the  first  corporation  and  shah  not  be 
Hflble  for  any  debts  of,  or  clamis  against,  the  hist  corpo 
ration,  whicl  may  not  be  expressly  assumed  m  the  con- 


2'*  CORPOKATIONS.  [Ch.4J>.  16. 

S;fif ''^P''''^''''^^  '  "*^''  ^^'^"  *'^«  property,  fmnchise  or 
protits  of  such  new  corporations  be  exempt  from  taxa- 
tioii.  And  that,  the  whole  profits  of  tJie  business  done  by 
such  corporation  shaJl  belong  to  the  said  purchaser  and  his 
assigns.  His  interest  in  the  corporation  shall  be  personal 
estate  and  he  or  his  assigns  may  create  so  many  shares 
ot  stock  therein,  as  he  or  they  may  think  proper,  not  ex- 
ceeding the  amount  of  stock  in  the  first  coiporation  at 
the  time  of  the  sale,  and  assign  the  same  in  a  book  to 
be  kept  for  that  purpose.  The  said  shares  shall  there- 
upon be  on  the  footing  of  shares  in  ioint  stock  compa- 
'^}^^,^^']f^^^y^,  except  only,  that  the  first  meeting  of  the 
stockholders  sha  1  be  held  on  such  day,  and  at  suSh  place 
as  shall  be  fixed  by  the  said  purchaser,  of  which  notice 
sball  be  published  for  two  weeks  in  a  newspaper  And 
when  a  corporation  shaU  expire  or  be  dissolved,  or  its  cor- 
porate rights  and  privileges  shall  have  ceased,  all  its  works 
and  property  and  debts  due  it,  shall  be  su'«ject  to  the  pay- 
ment of  debts  due  by  it,  and  then  to  distribution  among 
tbe  members  according  to  their  respective  interests  ;  and 
such  corporation  may  sue  and  be  sued  as  before,  for  the 
purpose  of  coUectmg  debts  due  it.  prosecuting  rights 
under  previous  contracts  with  it,  and  enforcing  its  liabil- 
il^u^.  distributing  the  proceeds  of  its  works;  property 
and  debts  among  those  entitled  thereto. 

Gooch  V.  McGee,  83-59;  Young  v.  Rollins,  85-^85. 

Sec.  699.  Tax  collectors  to  levy  upon  and  take  into 
possession  property  of  corporations,  &c.,  whether  in 
hands  of  receiver  or  not.    1879,  c.  245,  s.  1. 

Whenever  taxes  are  duly  assessed,  charged  and  ex- 
tended against  any  corporation  having  chartered  rights 
or  doing  business  in  this  state,  or  having  property  in  this 
state,  or  against  any  person  resident  in  this  state  or 
doing  business  or  having  property  in  this  state,  and  the 
tax  list  is  in  the  hands  of  any  officer  or  tax  collector,  it 
shall  be  competent  for  such  officer  or  tax  collector  when- 
ever said  taxes,  whether  hsted  or  unlisted,  are  due  and 
unpaid,  to  levy  upon,  seize  and  take  into  his  possession  such 
part  ot  the  property  belonging  to  such  person  or  corpora- 
tion as  may  be  necessary  to  pay  such  taxes  hsted  or  un- 
listed, whether  the  property  of  such  corporation  or  per- 
son be  in  the  hands  of  a  receiver  duly  appointed  or 


Chap.  16.]  CORPORATIONS.  275 

Sec.  700.  Not  necessary  to  obtain  order  of  court  for  the 
payment  of  tax.  if  property  in  hands  ol  receiver.  1879, 
c.  345,  ss.  i!,  3,  4. 

In  all  cases  provided  for  in  the  preceding  section  it 
shaU  not  be  necessary  for  such  officer  or  tax  collector  to 
apDly  to  and  obtain  from  the  court  appomtmg  such  re 
Sve^r,  or  having  jurisdiction  of  th«  property  or  o  he 
receiver,  an  order  for  the  payment  of  such  taxes,  but  the 
sfr^e  may  be  coUected  as  aforesa.d,  by  distraint  and 
seizure  as  if  the  property  or  corporation  was  not  m  the 
hands  of  a  receiver.  This  section  and  the  preceding  sec- 
t£n  shall  apply  to  all  taxes,  whether  state,  county,  town 
or  municipal;  and  shall  be  liberally  construed  m  favor  of, 
and  in  furtherance  of,  the  collection  of  said  taxes. 

Sec.  701.  This  chapter  to  apply  to  all  corporations,  unless 
otherwise  declared  herein,  or  in  the  chapter  on  rail- 
roads and  telegraphs. 

This  chapter,  unless  otherwise  declared  herein  or  in 
the  chapter  entitled  Railroads  and  Telegraphs  shall  apply 
to  all  corporations,  whether  created  by  special  act  ot  as- 
sembly, by  letters  of  agreement  under  this  chapter,  or  bj 
Se  chapter  entitled  Railroads  and  Telegraphs  And  this 
chapter  and  the  chapter  on  Railroads  and  Telegraphs,  so 
fir  as  the  same  are  applicable  to  railroad  corpora  ions 
shall  govern  and  control  anything  in  the  specia  act  of 
assembly  to  the  contrary  notwithstandmg,  unless  in 
S  act  of  the  general  assenably  creating  the  corpora^ 
tion,  the  section  or  sections  of  this  chapter,  and  of  the 
chapter  entitled  "Railroad  and  Telegraph  Companies  " 
Stended  ?o  be  repealed,  shall  be  specially  referred  to  by 
number,  and  as  such,  speciaUy  repealed. 


276 


COUNTIES,  ETC. 


[Chap.  17. 


CHAPTER  SEVENTEEN. 

COUNTIES,  COUNTY  COMMISSIONEES  AND  COUNTY 
GOVEENMENT. 


Section. 

703.  Every  county  a  body  politic. 

703.  How  its  powers  can  be  exercised. 

704.  Corporate  powers. 

705.  Proceedings  by  or    against    a 

county. 

706.  Meetings  of  the  board. 

707.  Powers  of  the  board  of  com- 

missioners. 

708.  When  the  board  to  qualify  and 

enter  upon  cflice. 

709.  Compensation  of  tlie  board. 

710.  Compensation  of  clerk  of  the 

board. 

711.  Neglect  of    duty    by  commis- 

sioner a  misdemeanor. 
713.  Duly  of  clerk. 
713.  Clerk   to    publish    an    annual 

statement. 


Section. 

714.  Neglect  of  clerk  to  publish 
statement  a  misdemeanor. 

715.  Certified  copies  of  records  of 
board  may  be  read  in  evidence. 

716.  The  board  to  be  elected  by  the 
justices  of  the  peace. 

717.  Meetings  of  justices  of  the 
peace. 

718.  Purchase  of  county  indebted- 
ness. 

719.  Vacancies  in  boards  of  county 
commissioners  to  be  filled  by 
justices  of  the  peace. 

730.  The  board  of  commissioners  to 
flu  certain  vacancies. 

731.  Disputed  lines  between  coim- 
ties,  how  .settled. 

733.  The  boards  of  ccirunissioners  to 
be  sworn  and  paid. 

Sec.  702.  Every  county  a  body  politic.    1868,  c.  20,  s.  1. 
187C-'7,  c.  141,  s.  1. 

Every  county  is  a  body  politic  and  corporate,  and  shall 
have  the  powers  prescribed  by  statute,  and  those  neces- 
sarily imphed  by  law,  and  no  other. 

Winslow  V.  Com'rs,  04—318;  Salterthwaite  v.  Com'rs,  76—153. 

Sec.  703.  How  its  powers  can  be  exercised.    1868,  c.  20. 
s.  2. 

Its  powers  can  only  be  exercised  by  the  board  of  com- 
missioners, or  in  pursuance  of  a  resolution  adopted  by 
them.  ^ 

Pegram  v.  Com'rs,  65—114 

Sec.  704.  Corporate  powers.    1868,  c.  20,  s.  3. 

A  county  is  authorized: 

(1)  To  sue  and  be  sued  in  the  name  of  the  board  of 
commissioners; 

(2)  To  purchase  and  hold  lands  within  its  limits  and 


Chap.  17.]  COUNTIES,  ETC.  277 

for  the  use  of  its  inhabitants,  subject  to  the  supervision 
of  the  general  assembly;  „„.i  Vir.i^ 

(3)  To  make  such  contracts,  and  to  purchase  and  hold 
such  personal  property,  as  may  be  necessary  to  the  ex- 

^'•(S'TomareTud]  orders  for  the  disposition  or  use  of 
its  property  as  the  interest  of  its  inhabitants  reqmre. 

Winslow  V.  Com'rs,  64-218;  Gooch  v.  Gregory,  65-142. 
Sec.  705.  Proceedings  by  or  against  a  county.    1868,  c. 

All  actions  or  proceedings  by  or  against  a  county,  m 
its  corporate  capacity,  shall  be  in  the  name  of  the  board 
of  commissioners  of  the  county.  „    ,      ^     , 

Pegram  v.  Com-rs,  65-114;  Askew  v.  Pollock,  66-49 ;  Steele  v.  Comrs, 
70—137;  Jones  V.  Com'rs,  85—278. 

Sec.  706.  Meetings  of  the  board.      1868,  c.  20,  ss.  5,  6,  7. 
1868-'9,  c.  259.     1881,  c.  287.  ^,   ^  r,  ,,. 

The  board  of  commissioners  in  each  county  shall  hold 
a  regnlar  meeting  at  the  court  house  on  the  first  Mon- 
days in  Decembe?  and  June.  Special  mee  ings  may  be 
held  on  the  first  Monday  in  every  month,  but  shall  not 
continue  longer  in  session  than  two  days.  Meetings  may 
be  held  at  other  times  for  the  more  convenient  dispatch 
of  business  at  the  call  of  the  chairman  on  the  written 
request  of  one  member  of  the  board,  but  pubhc  notice 
of  the  time  and  place  of  all  such  called  meetings  shall  be 
posted  at  the  court  house  door  for  not  less  than  six  days, 
and  published  one  time  in  a  county  newspaper,  if  there 
is  one  The  board  shaU  receive  no  compensation  tor  at- 
tending such  called  meetings.  The  board  may  ad]0urn 
its  regular  meetings  in  December  and  June  from  day  to 
day  until  the  business  before  it  is  disposed  of.  i.very 
meeting  shall  be  open  to  all  persons.  ^  majority  of  the 
board  shall  constitute  a  quorum.  At  each  regular  De- 
cember meeting  the  board  shall  choose  one  of  its  mem- 
bers as  chairman  for  the  ensuing  year;  in  his  absence 
the  members  present  shall  choose  a  temporary  chairman. 

King  V.  Hunter,  65—603;  People  v.  Green,  75—329. 
Sec   707.  Powers  of  the  board  of  commissioners.   1868,  c. 
20,  s.  8.    187 1-'2,  c.  66,  s.  1.    1876-'7,  c.  14=1,  s.  1. 

(1^  WHEN,    HOW    AND    BY    WHOM    COUNTY    TAXES    TO     BE 
LEVIED,  TIME  FOR  THE  COLLECTION  MAY  BE  EXTENDED. 

The  board  of  commissioners  is  authorized,   with  the 


278  COUNTIES,  ETC.  [Chap.  17. 

concurence  of  a  majority  of  the  justices  of  the  peace  sit- 
ting with  them,  to  levy,  in  like  manner  with  the  state 
taxes,  the  necessary  taxes  for  county  purposes;  but  the 
taxes  so  levied,  shall  never  exceed  the  double  of  the  state 
tax,  except  for  a  special  purpose,  and  with  the  special 
approval  of  the  general  assembly.  All  county  taxes 
shall  be  levied  at  the  regular  meeting  of  the  board  and  of 
the  justices  on  the  first  Monday  in  June.  The  board  may 
extend  the  time  for  the  collection  and  settlement  of  the 
county  taxes  to  such  time  as  may  be  deemed  expedient, 
not  to  extend  beyond  the  first  day  of  May  next  after  the 
taxes  were  levied. 

Winslow  V.  Com'rs,  64—218;  Mauney  v.  Com'rs,  71—486;  Satterthwaite 
V.  Com'rs,  76—153;  Long  v.  Com'rs,  76—373;  Com'rs  v.  Com'rs,  79— 5G5; 
"Watson  V.  Com'rs,  83—17;  Fry  v.  Com'rs,  82—304;  State  v.  Selby,  83—617; 
Com'rs  V.  R.  R.  Co.,  86—541;  Cromartie  v.  Com'rs,  87—134. 

(2)  EXEMPTION  FROM  CAPITATION  TAX. 

To  exempt  from  capitation  tax  in  special  cases,  on  ac- 
count of  poverty  and  infirmity. 

(3)  TO  PROVIDE  FOR  THE  PAYMENT  OF  DEBT. 

To  provide  by  taxation  or  othervsdse,  for  the  prompt 
and  regular  payment  with  interest,  of  any  existing  debt 
owing  by  any  county. 

Trull  V.  Com'rs,  73— 388;  Davis  v.  Com'rs,  74—374;  French  v.  Com'rs, 
74—693;  Belo  v.  Com'rs,  76—489;  Brickell  v.  Com'rs,  81—240;  Cromartie 
v.  Com'rs,  87—134. 


(4)  TO  SUBMIT  PROPOSITIONS  TO  CONTRACT  DEBT  TO  A  VOTE 
OF  ELECTORS. 

To  submit  to  a  vote  of  the  quahfied  electors  in  the 
county,  after  having  obtained  the  approval  of  the  gen- 
eral assembly,  any  proposition  to  contract  a  debt,  or  loan 
the  credit  of  the  county,  under  section  seven,  article 
seven,  of  the  constitution ;  to  order  the  time  for  voting 
upon  such  proposition,  which  shall  be  upon  public  notice 
thereof  at  one  or  more  places  in  each  township  in  the 
county,  and  publication  in  one  or  more  county  newspa- 
pers, if  there  be  any,  for  three  months  next  immediately 
preceding  the  time  fixed  on;  and  such  election  shall  take 
place  and  be  conducted  under  the  laws  as  prescribed  for 
the  election  of  members  of  the  general  assembly;  and 
the  commissioners  shall  provide  for  giving  effect,  in  case 


Chap.  17.]  COUNTIES,  ETC.  279 

of  the  adoption  of  the  proposition,  to  the  expressed  will 
of  a  majodty  of  the  qualified  voters  in  such  election; 

Norment  v.  Charlotte,  85—387. 

(5)  TOMAKEOKDERS  RESPECTING  CORPORATE  PROPERTY. 

To  make  such  orders  respecting  the  corporate  property 
of  the  county  as  may  be  deemed  expedient; 

(6)  TO  AUDIT  ACCOUNTS. 

To  audit  accounts  against  the  county    and  direct  the 
raising  of  the  sums  necessary  to  defray  them; 

wSw  V.  Com'rs.  64-218;  Mauney  v.  Com'rs.  71-486;  Owartie  v. 
Com'rs,  85—211. 

(7)   TO   PURCHASE   PROPERTY   FOR    ANY   PUBLIC    BUILDING, 
AND  AT  EXECUTION  SALE.      1879,  C.  144,  S.  1. 

To  nurchase  real  property  necessary  for  any  public 
coStrbuUdSg,  and  for  the  support  of  the  poor;  and  to 
determine  the  Ste  thereof,  where  it  has  not  been  already 
locS  and  to  purchase  land  at  any  execution  sale,  when 
rshall  be  deemed  expedient  to  do  so  to  secure  a  debt  due 
thecounty  The  deed  shall  be  made  to  the  board  of  com- 
rnissS;  and  the  board  may,  in  its  discretion,  sell  any 
lands  so  purchased; 

(8)  TO  DESIGNATE  SITE  FOR  COUNTY  BUILDINGS. 

With  the  concurrence  of  a  majority  of  the  justices  of 
the  peace  sitting  with  them,  to  remove  or  designate  anew 
site  fofany  county  building;  but  the  site  of  any  county 
buHdhig  already  located  shall  not  be  changed,  unless  by 
an  unanimous  vote  of  all  the  members  of  the  board  and 
b?  a  majority  of  the  justices  at  the  regular  December 
meethig  and  unless  upon  notice  of.  the  proposed  change 
Sec  fying  the  new  site.  Such  notice  .shall  be.  published 
ill  a  newspaper  printed  in  the  county,  if  there  is  one  and 
posted  in  one  or  more  public  places  m  every  township  in 
the  countvfor  three  months,  next  immediately  preceding 
tSe  annual  meeting,  at  which  the  final  vote  on  the  pro^ 
nosed  change  is  to  be  taken.  Such  new  site  shall  not  be 
S?ore  than  one  mile  distant  from  the  old,  except  upon  the 
special  approval  of  the  general  assembly; 

Win&lovv  V.  Com'rs.  64—218. 


280  COUNTIES,  ETC.  [Chap.  17. 

(9)   TO  ERECT  AND  REPAIK  COUNTY  BUILDINGS. 

With  the  concuiTence  of  a  majority  of  the  justices  of 
the  peace,  to  erect  and  repair  the  necessary  county  build- 
ings, and  to  raise  by  taxation,  the  moneys  therefor; 

Winslow  V.  Com'rs,  C4— 318;  Long  v.  Com'rs,  76—373;  Cromartie  v. 
Com'rs,  87—134. 

(10)   TO   CONSTRUCT  AND  REPAIR  BRIDGES. 

To  construct  and  repair  bridges  in  the  county,  and  to 
raise  by  tax,  the  money  necessary  therefor,  and  when  a 
bridge  is  necessary  over  a  stream,  whicli  divides  one 
county  from  another,  the  board  of  commissioners  of  each 
county  shall  join  in  constructing  or  repairing  such  bridge; 
and  the  charge  thereof  shall  be  defrayed  by  the  counties 
concerned,  in  proportion  to  the  number  of  taxable  polls 
ineacli:  Provided,  the  cost  of  said  bridges  does  not  ex- 
ceed five  hundred  dollars;  and,  if  the  cost  exceeds  five 
hundred  dollare,  with  the  concurrence  of  a  majority  of 
the  justices  of  the  peace; 

Winslow  V.  Com'rs,  64—318;  Long  v.  Com'rs,  76—373,  State  v.  Selby, 
83—617;  Cromartie  v.  Com'rs,  87—134. 

(11)  TO  BORROW  MONET, 

To  borrow  money  for  the  necessary  expenses  of  the 
county  with  the  assent  of  a  majority  of  the  justices  of 
the  peace  therein,  and  not  otherwise,  and  to  provide  for 
its  payment,  with  interest,  in  yearly  instalments,  by  taxa- 
tion; 

Winslow  V.  Com'rs,  64 — 318. 

(12)  TO  RAISE  mOHWAY  MONEYS. 

To  raise  by  tax  the  necessary  highway  moneys,  in  such 
manner  as  may  be  prescribed  by  law; 

Winslow  V.  Com'rs,  64^318;  Long  v.  Com'rs,  76—373. 

(13)   TO  DIVIDE   COUNTY  INTO  DISTRICTS. 

To  divide  each  county  into  convenient  districts,  called 
townships,  and  to  determine  the  boundaries,  and  prescribe 
the  names  of  said  townships.  A  map  and  survey  of  said 
townships  shall  be  filed  in  the  office  of  the  clerk  of  the 
board  of  commissioners,  and  also  in  the  office  of  the 
secretary  of  state; 
Winslow  V.  Com'rs,  64 — 318. 


Chap.  lY.]  COUNTIES,  ETC.  281 

(14)    TO    ERECT,    DIVIDE    OR    ALTER    TOWNSHIPS.       1876-7, 
c.  141,  ss,  3,  5. 

To  erect,  divide,  change  the  names  of,  or  alter  town- 
ships in  the  manner  following:  In  any  county,  any  three 
freeholders  of  each  township  to  be  affected,  may,  after 
the  notice  presently  to  be  mentioned,  apply  by  petition 
to  the  board  of  commissioners,  to  erect  a  new  township, 
or  divide  an  existing  township,  or  change  the  name  of  or 
alter  the  bomidaries  thereof.  Notice  of  the  apphcation 
shall  be  posted  in  one  or  more  public  places  in  each  of 
such  townships,  and  published  in  a  newspaper  printed  in 
the  county,  if  there  is  one,  for  at  least  four  weeks  pre- 
ceding the  meeting  at  which  the  application  is  made  to 
the  board.  But  the  action  of  the  board  in  creating  or 
altering  townships  shall  not  be  operative,  until  approved 
by  the  ^justices  of  the  peace  at  a  regular  meeting.  No 
township  shall  have  or  exercise  any  corporate  powers 
whatsoever,  unless  authorized  by  an  act  of  the  general 
assembly,  to  be  exercised  under  the  supervision  of  the 
board  of  commissioners; 

Wallace  v.  Trustees,  81—164;  Jones  v.  Com'is,  85—278. 

(15)  TO  ORDER  THE  LAYING  OUT,   ALTERATION  OR  DISCON- 
TINUING OF  HIGHWAYS. 

To  exercise  authority  in  laying  out,  altering,  repairing 
and  discontinuing  highways;  in  establishing  and  settUng 
ferries;  in  building  and  keeping  up  bridges;  in  laying  off 
or  discontinuing  cart-ways;  in  providing  draws  in  all 
bridges,  where  the  same  may  be  necessary  for  the  con- 
venient passage  of  vessels;  in  appointing  overseers  of  high- 
ways; in  excusing  persons  fi-om  working  on  the  high- 
ways; in  allowing  and  contracting  for  the  building  of 
toll-bridges,  and  taking  bond  from  the  builders  thereof; 
and  in  licensing  the  erection  of  gates  across  highways. 
This  authority  shall  be  exercised  under  the  rules,  regula- 
tions, restrictions  and  penalties  in  all  respects  prescribed 
and  imposed  in  i^he  chapter  entitled  Roads,  Ferries  and 
Bridges; 

McArthur  v.  McEachin,  64 — 454;  State  v.  Selby,  83—617. 

(16)  TO  APPOINT  AN  INSPECTOR  OP  HIGHWAYS  AND  BRIDGES. 

To  appoint  an  inspector  of  highways  and  bridges  for 
the  county,  if  deemed  necessary;  to  fix  and  provide  for 


283  COUNTIES,  ETC.  [Chap.  17. 

his  compensation  and  regulate  his  duties,  not  inconsistent 
with  the  laws  of  the  state.  The  commissioners  of  two  or 
more  counties  may  unite  in  employing  an  inspector  of 
highways  and  bridges,  and  apportioning  his  compensa- 
tion between  the  respective  counties  as  may  be  agreed; 

(17)  TO  PROVIDE  FOR  A  HOUSE  OF  CORRECTION. 

With  the  concurrence  of  a  majority  of  the  justices  of 
the  peace,  to  make  provision  for  the  erectiou  in  each 
county  of  a  house  of  correction,  where  vagrants  and  per- 
sons guilty  of  misdemeanors  shall  be  restrained  and  use- 
fully employed;  to  regulate  the  employment  of  labor 
therein;  to  appoint  a  superintendent  thereof,  and  such 
assistants  as  may  be  deemed  necessary,  and  to  fix  their 
compensation; 

State  V.  Garrell,  83—580. 

(18)  TO  PROVIDE  FOR  THE  EMPLOYSIENT  OF  PRISONERS. 

To  provide  for  the  employment  on  the  highway  or  pub- 
lic works  in  the  county,  of  all  persons  condemned  to  ini- 
prisonment  with  hard  labor,  and  not  sent  to  the  peni- 
tentiary; 

State  V.  Shaft.  78—464. 


(19)  TO  APPOINT  PROXIES  TO  REPRESENT  COUNTY. 

To  appoint  proxies  to  represent  in  any  annual  or  other 
meeting,  the  shares  or  interest  held  by  any  county  in  a 
railroad  company,  or  other  corporation,  under  the  char- 
ter of  such  coiporation,  or  under  any  special  acts  of  the 
general  assembly,  authorizing  county  subscriptions  in 
such  cases; 

(20)  TO  SELL  OR  LEASE  REAL  PROPERTY. 

To  sell  or  lease  any  real  property  of  the  county,  with 
the  assent  of  a  majority  of  the  justices  therein,  and  to 
make  deeds  or  leases  for  the  same  to  any  purchaser  or 
lessee; 

(21)  TO  PROVIDE  FOR  THE  MAINTENANCE  OF  THE  POOR. 

To  provide  by  tax  for  the  maintenance,  comfort  and 
well-ordering  of  the    poor;    to  employ,   biennially,   by 


Chap.  17.]  COUNTIES,  ETC.  283 

public  letting  or  otherwise,  some  competent  person  as 
overseer  of  the  poor;  to  institute  proceedings  by  the  war- 
rant of  the  chairman  against  any  person  commg  into  the 
county  who  is  likely  to  become  chargeable  thei-eto,  and 
cause  the  removal  of  such  poor  person  to  the  county 
where  he  was  last  legaUy  settled;  and  to  recover  by  action 
in  the  superior  court  fiom  the  said  county,  all  the  charges 
and  expenses  whatever,  incurred  for  the  maintenance  or 
removal  of  such  poor  person; 

Long  V.  Com'rs,  76 — 373. 


(22)  TO  ESTABLISH  PUBLIC  HOSPITALS. 

To  establish  public  hospitals  for  the  county  in  cases  of 
necessity,  and  to  make  rules,  regulations  and  by-laws  for 
preventing  the  spread  of  contagious  and  infectious  dis- 
eases, and  for  taking  care  of  those  afflicted  thereby,  the 
same  not  being  inconsistent  with  the  laws  of  the  state; 
and  to  raise  by  taxation  the  necessary  moneys  to  defray 
the  charges  and  expenses  so  incurred; 


(23)   TO  PROCURE  WEIGHTS  AND  MEASURES.      E.  C,  C.  117, 

S.  4.     1868,  c.  20,  s.  26. 

To  procure  for  each  county  sealed  weights  and  meas- 
ures, according  to  the  standard  prescribed  by  the  congress 
of  the  United  States;  and  to  elect  a  standard-keeper, 
who  shall  qualify  before  the  board  and  give  bond  ap- 
proved by  the  board,  as  prescribed  by  law; 


(24)    TO    APPOINT    COMMISSIONERS    TO    OPEN    RIVERS    AND 
CREEKS. 

To  appoint  a  commissioner  to  open  and  clear  the  rivers 
and  creeks  within  the  county,  or  where  such  river  or 
creek  forms  a  county  line  or  a  part  thereof.  For  this 
purpose  the  board  is  authorized  to  withdraw  from  the 
public  roads  such  hands  as  may  be  deemed  necessary,  and 
allot  them  to  such  work  under  overseers  and  the  direc- 
tion of  the  commissioner.  The  board  may  impose  the 
duties  of  this  sub-division  on  the  inspector  of  highways 
and  bridges  when  appointed;  and  shall  in  all  respects 
conduct  the  opening  and  clearing  of  such  rivers  and 
creeks  as  prescribed  by  law; 


284:  COUNTIES,  ETC.  [Chap.  17. 

(25)  TO  LICENSE    PEDDLERS    AND  RETAILERS  OF  SPIRITOUS 
LIQUORS. 

To  license  peddlers  and  retailers  of  spiritous  and  other 
liquors  as  prescribed  by  law.  No  license  shall  be  good 
for  more  than  one  year,  nor  granted  to  two  or  more  per- 
sons to  peddle  as  partners  in  trade.  And  the  board  of 
commissioners  shall  grant  licenses  for  the  sale  of  spiritu- 
ous liquors  to  all  persons  possessing  the  qualifications  re- 
quired by  law,  except  in  those  localities  where  the  sale 
of  spirituous  liquors  shall  be  prohibited  by  law; 


(26)  TO  ESTABLISH  PUBLIC  LANDINGS,  PLACES  OF  INSPECTION, 
AND  INSPECTORS. 

To  establish  such  public  landings  and  places  of  inspec- 
tion as  the  board  of  commissioners  may  think  proper; 
and  to  appoint  such  inspectors  in  any  town  or  city  as 
may  be  authorized  by  law; 


(27)  TO  LICENSE  AUCTIONEERS. 

To  license  for  the  term  of  one  year  any  number  of  per- 
sons to  exercise  the  trade  and  business  of  auctioneers  in 
each  county,  and  to  take  their  bonds  as  prescribed  by 
law; 


(28)  TO  INDUCT  INTO   OFFICE   COUNTY  OFFICERS  AND  TO  AP- 
PROVE THEIR  BONDS.      1874-'5,   C.  237,    S.  3. 

To  qualify  and  induct  into  office  at  the  meeting  of  the 
board  on  the  first  Monday  in  the  month  next  succeeding 
their  election  or  appointment  the  following  named  county 
officers,  to- wit:  clerk  of  the  superior  court,  clerk  of  the 
inferior  court,  sheriff,  coroner,  treasurer,  register  of 
deeds,  surveyor  and  constable;  and  to  take  and  approve 
the  official  bonds  of  said  officers,  which  the  boaid  shall 
cause  to  be  registered  in  the  office  of  the  register  of  deeds. 
The  original  bonds  shall  be  deposited  with  the  clerk  of 
the  superior  court,  except  the  bond  of  tiie  said  clerk, 
which  shall  be  deposited  with  the  register  of  deeds  for 
safe  keeping; 

Com'rs  V.  Miignin,  78—183;  Dixon  v.  Com'rs,  80—118;  .Tonea  v.  .Tones, 
80—127;  Worley  v.  Smith,  80—305;  Swain  v.  McRae,  80—111;  Worley  v. 
Smith,  81—301 


Chap.  17.]  COUNTIES,  ETC.  285 

(29)  TO  REQUIRE  FROM  ANY  COUNTY  OFFICER  A  REPORT 
UNDER  OATH. 

To  require  from  any  county  officer,  or  other  person 
emploved  and  paid  by  the  county,  a  report  under  oath 
at  any"  time,  on  any  matters  connected  with  his  duties 
A  neglect  to  comply  with  such  requu-ement  by  any  such 
officer  shall  be  a  misdemeanor; 

McNeil  V.  Green,  75—339. 

(30)  TO  AUTHORIZE  CHAIRMAN  TO  ISSUE  SUBPCENAS. 

To  authorize  the  chairman  to  issue  subpoenas  to  com- 
pel the  attendance  before  the  board,  of  persons,  and  the 
production  of  books  and  papers  relating  to  the  attairs  of 
the  county  for  the  purpose  of  exanimatiou  on  any  mat- 
ter within  the  jurisdiction  of  the  board  The  subpoena 
shaU  be  served  by  the  sheriff  or  any  constable  to  whom  it 
is  delivered:  and  upon  return  of  personal  service  thereot, 
whoever  neglects  to  comply  with  the  subpoena  or  refuses 
to  answer  any  proper  question,  shall  be  guilty  of  con- 
tempt and  punishable  therefor  by  he  board  A  witness 
is  bound  in  such  case  to  answer  all  the  questions  which 
he  would  be  bound  to  answer  in  like  case  m  a  court  of 
iustice;  but  his  testimony  given  before  the  board  shall 
not  be  used  against  the  witness  on  the  trial  of  any 
criminal  prosecution  other  than  for  perjury  committed 
on  the  examination; 

McNeil  V.  Green,  75—339. 

(31)  TO  ADOPT  A   COUNTY  SEAL. 

To  adopt  a  seal  for  the  county,  a  description  and  im- 
pression whereof  shall  be  filed  in  the  office  of  superior 
court  clerk  and  of  the  secretary  of  state. 

Sec.  708.  When  the  board  to  qualify  and  enter  upon  office. 
1868,  c.  20,  s.  14. 

The  board  of  commissioners  shall  qualify  and  enter 
upon  the  duties  of  their  office  on  the  fi'^^  ^I^^-^^^^y  f  ,Ji^- 
Sember  next  succeeding  their  election,  and  they  may  tfke 
the  oaths  of  office  before  any  person  authorized  by  aw 
o  aSSinister  oaths.  The  oaths  of  office  sevemllyta^^^^^^ 
and  subscribed  by  them,  shall  be  deposited  with  the  clerk 
of  the  superior  court. 

Jones  V.  Jones,  80—127. 


286  COUNTIES,  ETC.  [Chap.  17. 

Sec.  709.  Compensation  of  the  board.    1868.  c.  20,  s.  15 
1872-'3,  c.  108.     1881,  c.  318. 

Except  where  otherwise  provided  by  law  each  com- 
missioner shall  receive  for  his  services  and  expenses  in 
attending  the  meetings  of  the  board  not  exceeding  two 
dollars  per  day,  as  a  majority  of  the  board  may  fix  upon, 
and  they  may  be  allowed  mileage  to  and  from  their  re- 
spective places  of  meeting,  not  to  exceed  five  cents  per 
mile:  Provided,  that  in  the  counties  of  Mecklenburg 
Pasquotank  and  Halifax,  a  majority  of  the  justices  of  the 
peace  may  allow  the  chairman  of  the  board  such  compen- 
sation as  they  shall  think  proper.  The  accounts  of  each 
commissioner  shall  be  audited  and  verified,  as  other 
claims. 

Sec.  710.  Compensation  of  clerk  of  the  board.    1868,  c. 
20,  s.  16. 

The  board  shall  fix  the  compensation  of  its  clerk. 

Sec.  711.  Neglect  of  duty  by  commissioner  a  misdemean- 
or.   1868,  c.  20,  s.  17. 

Any  commissioner  who  shall  neglect  to  perform  any 
duty  required  of  him  by  law  as  a  member  of  the  boaid, 
shall  be  guilty  of  a  misdemeanor,  and  shall  also  be  liable 
to  a  penalty  of  two  hundred  dollars  for  each  offence,  to 
be  paid  to  any  person  who  shall  sue  for  the  same. 

Sec.  712.  Duty  of  clerk.    1868,  c.  20,  s.  13. 

It  is  the  clerk's  duty  : 

(1)  To  record  in  a  book  to  be  provided  for  the  purpose 
all  the  proceedings  of  the  board; 

(2)  To  enter  every  resolution  or  decision  concerning  the 
payment  of  money; 

(3)  To  record  the  vote  of  each  commissioner  on  any 
question  submitted  to  the  board,  if  required  by  any  mem- 
ber present; 

(4)  To  preserve  and  file  in  alphabetical,  or  other  due 
order,  all  accounts  presented  or  acted  on  by  the  board, 
and  to  designate  upon  every  account  audited,  the  amount 
allowed  and  the  charges  for  which  it  was  allowed; 

(5)  To  keep  the  books  and  papers  of  the  board  free  to 
the  examination  of  all  persons. 

Sec.  713.  Clerk  to  publish  an  annual  statement.    1868.  c. 
20,  s.  19. 

The  clerk  shall  annually,  on  or  within  five  days  next 
before  the  first  Monday  of  December,  make  out  and  cer- 


Chap.  17.]  COUNTIES,  ETC.  287 

tify,  and  cause  to  be  posted  at  the  court  house  and  pub- 
lished in  a  newspaper  printed  in  the  couiity  if  there  be 
one,  for  at  least  four  weeks,  a  statement  for  the  preced- 
ins  vear    showinsr:  , . 

(if  The  amount,  items  and  nature  of  all  compensation 
audited  by  the  board  to  the  members  thereof  severally; 

(2^  The  number  of  days  the  board  was  in  session  and 
the  distance  traveled  by  the  members  respectively  m 
attending  the  same;  .     ,        , 

(3)  Whether  any  unverified  accounts  were  audited,  ana 
if  any,  how  much  and  for  what. 

See.  714.  Neglect  of  clerk  to  publish  statement  a  mis- 
demeanor. 1868,  c.  20,  s.  20.  -.mi 
Any  clerk  who  intentionally  neglects  to  post  and  publish 
the  statement  required  by  the  preceding  section  or  know- 
ingly posts  and  publishes  a  false  statement,  shall  be  guilty 
of  a  misdemeanor. 

Sec.  715.  Certified  copies  of  records  of  the  board  may  be 
read  in  evidence.    1868,  c.  20,  s.  21. 

Copies  of  the  records  of  the  board,  certified  by  the  clerk 
under  his  hand  and  the  seal  of  the  county,  are  declared 
evidence  in  all  the  courts  of  the  state. 

Sec.  716.  Board  of  commissioners  to  be  elected  by  tbe 
justices  of  the  peace.    1876-'7,  c.  141,  s.  5. 

The  iustices  of  the  peace  for  each  county,  on  the  first 
Monday  in  June,  one  thousand  eight  hundred  and  eighty- 
four,  and  on  the  first  Monday  in  June  every  two  years 
thereafter,  shall  assemble  at  the  court  house  of  their  re- 
spective counties,  and  a  majority  being  present,  shall  pro- 
ceed to  the  election  of  not  less  than  three  nor  more  than 
five  persons,  to  be  chosen  from  the  body  of  the  ciiunty, 
who  shall  be  styled  the  board  of  commissioners  tor  the 
county  of .......-,  and  shall  hold  their  offices  for  two 

years  from  the  date  of  their  qualification,  and  until  their 
successors  shall  be  elected  and  qualified.  They  shall  be 
qualified  by  taking  the  oath  of  office  before  the  clerk  ot 
the  superior  court,  or  some  judge  or  justice  of  the  peace, 
and  the  register  of  deeds  shall  be  ex  officio  clerk  of  the 
board  of  commissioners. 

Sec.  717.  Meetings  of  the  justices  of  the  peace.    1876-'7, 
c.  141,  s.  5.  . 

For  the  proper  discharge  of  their  duties,  the  justices 


288  COUNTIES,  ETC.  [Chap.  17. 

of  the  peace  shall  meet  annually  with  the  board  of  com- 
missioners on  the  fii'st  Monday  in  June,  unless  they  shall 
be  ofteuer  convened  by  the  board  of  commissioners, 
which  is  empowered  to  call  together  the  justices  of  the 
peace  not  oftener  than  once  in  three  months.  For  at- 
tending such  meetings,  the  justices  of  the  peace  shall 
receive  no  compensation;  but  they  shall  keep  a  record  of 
their  meetings.  The  register  of  deeds  shall  be  ex  officio 
the  clerk  of  the  justices  of  the  peace,  and  he  shall  receive 
such  compensation  for  his  services  as  the  board  of  com- 
missioners bhall  provide. 

Sec.  718.  Purchase  of  county  indebtedness.    1868-'9,  c. 
269,  s.  2. 

The  board  of  commissioners  may  purchase  at  any 
price,  not  exceeding  their  par  value  and  accumulated 
interest,  any  of  the  outstanding  bonds  or  other  indebted- 
ness of  the  county. 

Sec.  719.  Vacancies  in  boards  of  county  commissioners 
to  be  filled  by  justices  of  the  peace.    1879,  c.  231. 

In  case  of  a  vacancy  occurring  in  the  board  of  com- 
missioners of  a  county,  the  justices  of  the  peace  for  the 
county  shall  appoint  to  said  oflSce  for  the  unexpired 
term. 

Sec.  720.  The  board  of  commissioners  to  fill  certain  va- 
cancies.    1868,  c.  4.    Const.,  Art.  IV.,  s.  24. 

Whenever  a  vacancy  shall  occur  in  the  offices  of  sheriff, 
constable,  coroner,  register  of  deeds,  county  treasurer  or 
county  surveyor,  the  board  of  commissioners  of  the 
county  shall  fill  the  same  by  appointment. 

Jones  V.  Jones,  80—127;  Sneed  v.  Bullock,  80—133. 

Sec.  721.  Disputed  lines  between  counties,  how  settled. 
R.  C,  c.  27,  s.  1.     1836,  c.  3,  s.  1. 

Whenever  there  shall  be  any  dispute  concerning  the 
dividing  line  between  counties,  the  board  of  commis- 
sioners of  each  county  interested  in  the  adjustment  of 
said  line,  a  majority  of  the  board  consenting  thereto, 
may  appoint  one  or  more  commissioners,  on  the  part  of 
each  comity,  to  settle  and  fix  the  line  in  dispute;  and 
their  report,  when  ratified  by  a  majority  of  the  conimis- 
sionei-s  in  each  county,  shall  be  conclusive  of  the  location 
of  the  true  line,  and  shall  be  receded  in  the  register's 
office  of  each  county,  and  in  the  office  of  the  secretary  of 
state. 


Chap.  18.]       COUNTY  REVENUE,  ETC.  289 

Sec.  722.  Commissioners  to  be  sworn  and  paid.    B.  C  c. 
27,  ».  2.     1836,  c.  3,  s.  2. 

Such  commissioners,  before  entering  on  the  duties 
assigned  them,  shall  be  sworn  before  a  Justice  o  the 
peace;  and  they,  with  all  others  employed,  shall  be 
allowed  reasonable  pay  for  then-  labors. 


CHAPTER  EIGHTEEN. 

COUNTY  EEVENUE  AND  CHARGES,  AND  COSTS  IN 
CRIMINAL  ACTIONS. 


Section. 

723.  County  taxes  collected  by  sher- 
iff as  state  taxes. 

734.  Fines,  forfeitures  and  penalties 
to  be  paid  to  county  treas- 
urer. 

725.  Clerks    and    justices    to    keep 

itemized   statement   of    fines, 
&c. 

726.  Fines,  &c. ,  to  be  paid  to  county 

treasurer  within  sixty  days. 
737.  County  treasurer  to  file   certi- 
fied statement  with  superior 
court  clerk. 

728.  County  officers  to  make  anniial 

reports  of  public  funds  to  the 
board  of  commissioners. 

729.  Reports  to  be  registered,  if  ap- 

proved by  the  board  of  com- 
missioners. 

730.  Failure  of  officers  to  report. 

731.  Penalty  for  wilfully  swearing 

falsely  to  report. 
733.  Tax  fees  in  criminal  actions  to 

be  set  apart  for  the  payment 

of  jurors. 
733.  BiUs  of  costs  in  criminal  actions 

to  be  itemized  and  audited. 
734  Justices  of  the  peace  to  make 

out  itemized  bills  of  costs. 
13 


Section. 

735.  Bills  of  costs  to  be  open  to  the 

public. 

736.  Statement  of  costs  for  which 

the  county  is  liable,  to  be  filed 
with  board  of  commissioners. 

737.  Costs  to  be  paid  by  prosecutor 

in  certain  cases. 

738.  Prosecutor,    when   imprisoned 

for  non-payment  of  costs. 

739.  Costs  to  be  paid  by  the  county 

in  certain  cases. 

740.  Witnesses  for  state,  when  paid 

by  county. 

741.  County  wherein  the  offence  is 

committed  to  pay  costs  and 
receive  fines,  &e. 
743.  Costs  incurred  by  county  in 
prosecuting  charges  of  brib- 
ery, in  certain  cases  to  be  a 
charge  against  the  state. 

743.  When    witness    before    grand 

jury  to  be  paid  for  attendance. 

744.  When  witness  on  the   trial  of 

criminal  action  to  be  paid;  not 
more  tlian  two  witnesses  to  be 
paid. 

745.  On  appeal  from  justice  in  crim- 

inal action  only  two  witnesses 
to  be  bound  over. 


.'290 


COUNTY  REVENUE,  ETC.       [Chap.  18. 


Section. 

746.  Witnesses  to  be  dischargerl  by 

solicitor,  who  shall  file  a  certi- 
ficate of  their  attendance  with 
clerk. 

747.  When  court  to  order  county  to 

pay  defendant's  witnesses. 
74rf.  No  witness  entitled  to  liis  fees 
unless  his  name  is  included  in 
tlie  cei-tificate  of  solicitor  or 
order  of  court. 

749.  Confession  of  judgment  to  se- 

cure fine  and  costs  not  to  op- 
erate as  discharge  of  original 
judgment. 

750.  Defendant   failing  to   pay  fine 

and  costs  may  again  be  ar- 
rested. 

751.  Claims,    &c.,    against     county 

numbered  by  clerk  and  copy 
furnished  to  chairman  annu- 
ally. 
753.  Publication  to  be  made  annu- 
ally of  county  revenue  and 
charges. 

753.  Power  of  board  of  commission 

ers  to  dispose  of  county  funds. 

754.  No  account  shall  be  audited  un- 

less itemized  and  veiitied  by 
claimant. 

755.  Accounts  to  bi  numbered. 


Section. 

75C.  Claims  against  county,  cities 
and  towns  to  be  presented  for 
payment  within  two  years 
after  maturity  or  forever  bar- 
red of  collection. 

757.  Claims  against  municipal  cor- 

porations must  be  presented 
for  payment  and  refused,  be- 
fore an  action  can  be  main- 
tained because  of  their  non- 
payment. 

758.  Finance  committee. 

759.  Finance  committee    may   send 

for  persons  and  papers;  and 
administer  oaths. 

760.  Penalty  on  officer  failing  to  set- 

tle after  ten  days'  notice. 
701.  Finance  committee  to  publish 
statement. 

762.  Oath    of    members  of    finance 

committee. 

763.  Compensation  of  finance  com- 

mittee. 

764.  Penalty   on   clerks    and    other 

county  officers  for  failing  to 
account  for  and  pay  over 
county  funds. 
705.  Failure  of  clerk  or  other  officer 
to  perform  requirements  of 
this  cliapter  a  misdemeanor. 


Sec.  723.  County  taxes  collected  by  sheriff  as  state  taxes. 
R.  C,  c.  28,  s.  2.     1708,  c.  509,  s.  2.     1811,  c.  823. 

The  county  taxes  shall  be  collected  b.y  the  sheriff  of  the 
county,  who  shall  be  entitled  to  the  same  commissions 
and  subject  to  the  same  rules  and  I'egiilations  in  respect 
to  his  settlement  of  the  said  taxes  with  the  county  treas- 
xiier  as  he  is  in  his  settlement  of  the  pul)lic  taxes  with 
the  treasurer  of  the  state;  and  he  shall  also  settle  with 
the  county  treasurer  or  board  of  commissioneis  for  the 
taxes  on  the  unlisted  property  in  his  county,  under  the 
same  rules  and  regulations  as  he  accounts  with  the  aud- 
itor of  the  state. 


Lockhart  v.  Harrington,  1  Hawks,  408;  King  v.  Hunter,  65 — 603;  Davii 
V.  Com'rs,  74—374. 


Chap.  18.1      COUNTY  REVENUE,  ETC.  291 

Sec.  724,  Fiucs,  forfeitures  aud  peualties  to  be  paid  to 
county  treasurer.  K.  C,  c.  28,  s.  3.  Const.,  Ai-t.  IX., 
S.5.     1879,  c.  96,  s.  5. 

All  fines,  forfeitures,  penalties  and  amercements  col- 
lected in  the  sevei-al  counties  by  any  court  or  otherwise, 
shall  be  accounted  for  and  paid  to  the  county  treasurer  by 
the  officials  receiving  them,  and  shall  be  faithfully  appro- 
priated by  the  board  of  commissioners  for  the  estabhsh- 
ment  and  maintenance  of  free  public  schools;  and  the 
amounts  collected  in  each  county  shall  be  annually  le- 
ported  to  the  superintendent  of  public  instruction  on  or 
before  the  first  Monday  in  January,  by  the  board  of  com- 
missioners. 

Sec.  725.  Clerks  and  justices  to  keep  itemized  statement 
of  fines,  &c.     1873-'4,  c.  1 16,  s.  4.     1879,  c.  96,  s.  1. 

It  shall  be  the  duty  of  the  clerks  of  the  several  courts, 
and  of  the  several  justices  of  the  peace,  to  enter  in  a 
book,  to  be  supplied  by  the  county,  an  itemized  and  de- 
tailed statement  of  the  respective  amounts  received  by 
them  in  the  way  of  fines,  penalties,  amercements  and  for- 
feitures, and  said  books  shall  at  all  times  be  open  to  the 
inspection  of  the  public. 

Sec.  726.  Fines,  &c.,  to  be  paid  to  county  treasurer  with- 
in sixty  days.  R.  C,  c.  2«,  s.  6.  1830,  c.  1,  s.  13. 
1879,  c.  96,  s.  2. 

All  fines,  penalties,  amercements  and  forfeitures  re- 
ceived by  any  clerk  or  justice  of  the  peace  shall  within 
sixtv  days  thereafter  be  paid  over  to  the  county  treasurer, 
who  shall  give  a  receipt  to  every  such  clerk  or  justice  for 
the  same;  aud  said  county  treasurer  shall  enter  in  a  book, 
to  be  kept  by  him,  the  exact  amount  of  any  fine,  penalty 
or  forfeiture  so  paid  over  to  him,  giving  the  date  of  pay- 
ment, the  name  of  the  clerk  or  justice  so  paying  the 
same,  the  name  of  the  party  from  whom  such  fine,  pen- 
alty or  forfeiture  was  collected,  and  in  what  case. 

Sec.  727.  County  treasurer  tolile  certified  statement  with 
superior  court  clerli.     1879,  c.  96,  s.  3. 

It  shall  bo  the  duty  of  the  county  treasurer  to  file  a 
certified  statement,  itemized  as  aforesaid,  in  the  office  of 
the  clerk  of  the  superior  court,  and  it  shall  be  the  duty  of 
the  said  clerk  to  record  said  statement  in  a  book  to  be 
kent  in  his  office  for  that  purpose.  Said  certified  state- 
ment shall  be  filed  by  said  treasurer  in  said  clerk's  office, 
on  the  first  days  of  January,  April,  July  and  October  in 
each  year. 


292  COUNTY  REVENUE,  ETC.       [Chap.  18. 

Sec.  728.  County  officers  to  make  annual  reports  of  pub- 
lic funds  to  the  board  of  coniniisslouers.  1874-'5,  c. 
151,  s.l.     1876-'7,  c.  270,  s.  1. 

Sheriffs,  treasurers,  clerks  of  any  court,  registers  of 
deeds  and  all  other  officers  of  the  several  counties,  into 
whose  hands  any  public  funds  may  come  by  virtue  or 
under  color  of  their  office,  shall  make  an  annual  account 
and  report  of  the  amount  and  management  of  the  same, 
on  the  first  Monday  of  December,  or  oftener  if  required, 
in  &ach  year,  to  the  board  of  commissioners.  Such  re- 
port shall  give  an  itemized  and  detailed  account  of  the 
public  funds  received  and  disbursed,  the  amount,  date 
and  source  from  which  it  was  received,  and  the  amount, 
date  and  person  to  whom  paid,  shall  be  addressed  to  the 
chairman  of  the  board  of  commissioners  for  the  county, 
and  shall  be  subscribed  and  verified  by  the  oath  of  the 
party  making  the  same,  before  any  person  authorized  to 
administer  oaths. 
SuUle  V.  Doggelt,  87—203. 

Sec.  720.  Reports  to  l)e  registered,  if  approved  by  the 
board  of  commissioners.  1874-'5,  c.  151,  s.  3, 
1876-'7,  c.  276,  s.  2, 

The  board  of  commissioners,  if  it  shall  approve  of  any 
of  the  said  reports,  shall  cause  the  same  to  be  registered 
in  the  office  of  the  register  of  deeds  in  a  book  to  be  fur- 
nished to  the  register  of  deeds  by  the  county,  which  book 
shall  be  maiked  and  styled  "Eecord  of  Official  Reports," 
with  a  proper  index  of  all  reports  recorded  therem,  and 
each  official  report  shall,  if  approved,  be  indoreed  by  the 
chairman  of  the  board  with  the  word  "apuroved,"  with 
the  date  of  approval,  and  when  recorded  by  the  register 
of  deeds  he  shall  indorse  thereon  the  date  of  registration, 
the  page  of  the  "Record  of  Official  Reports"  upon  which 
the  same  is  registered,  sign  the  same  and  file  it  in  his 
office. 


Sec.  730.  Failure  of  officers  to  report.    1874-'5,  c.  151, 
s.  3.     1876-'7,  c.  276,  s.  3. 

If  any  person  required  to  make  any  of  the  reports  here- 
inbefore provided,  shall  fail  to  do  so,  or  if,  after  a  report 
has  been  made,  the  board  of  commissioners  shall  disap- 
prove the  same,  such  board  may  take  such  legal  stops  to 
compel  a  proper  report  to  be  made,  either  by  suit  on  the 
bond  of  such  officer  failing  to  comply  or  otherwise,  as 
said  board  may  deem  best. 


Chap.  18.1      COUNTY  REVENUE,  ETC.  293 

Sec.  731.  Penalty  for  wilfully  swearing  falsely  to  report. 
1874-'5,  c.  151,  s.  4.     187C-'7,  c.  27G,  s.  4. 

Any  person  wilfully  swearing  falsely  to  any  repoit 
made  as  herein  required,  shall  l)e  guilty  of  a  misdemeanor, 
and  on  conviction,  shall  be  fined  or  unprisoned,  or  both, 
in  the  discretion  of  the  court. 

See.  732.  Tax  fees  in  civil  and  criminal  actions  to  be  set 
apart  for  the  payment  of  jurors.  K.  C,  c.  28,  s.  4. 
1830,  c.  1,  s.  8.     1879,  c.  325.     1881,  c.  249. 

On  every  indictment  or  criminal  proceeding,  tried  or 
otherwise  disposed  of  in  the  superior,  criminal  or  inferior 
courts,  the  party  convicted,  or  who  shall.be  adjudged  to 
pay  the  costs,  shall  pay  a  tax  of  two  dollars.  In  every 
civil  action  in  any  court  of  record,  the  party  who  shall 
be  adjudged  to  pay  the  costs  shall  pay  a  tax  of  three  dol- 
lars; but  this  tax  shall  not  be  charged  unless  a  jury  shall 
be  empaneled.  Said  tax  fees  shall  be  charged  by  the 
clerks  in  the  bill  of  costs,  and  collected  by  the  sheriff,  and 
by  him  paid  into  the  county  treasury.  And  the  fund  thus 
raised  in  any  county,  shall  be  set  apart  for  the  payment 
of  the  jurors  attending  the  courts  thereof. 

Hunter  v.  Routledge,  6  Jon.,  216;  LitUe  v.  Ricbardson,  6  Jon.,  .305; 
Hewlett  V.  Nutt,  79—303. 

Sec.  733.  Bills  of  costs  in  criminal  actions  to  be  itemized 
and  audited.      1873-'4,  c.   116,  s.  1.      1879,  c.   264, 

s.  5. 

It  shall  be  the  duty  of  the  clerks  of  the  several  courts 
of  record,  at  each  teim  of  the  court,  to  make  up  an  item- 
ized statement  of  the  bill  of  costs  in  every  criminal  action 
tried  or  otherwise  disposed  of  at  said  term,  which  shall 
be  signed  by  the  clerk,  and  approved  by  the  solicitor. 
And  the  judge  or  justice,  may,  in  his  discretion,  for  satis- 
factory cause  appearing,  direct  that  the  witnesses,  or  any 
of  them,  shall  receive  no  pay,  or  only  a  portion  of  the 
compensation  authorized  by  law.  And  no  county  shall 
pay  any  such  costs,  unless  the  same  shall  have  been 
approved,  audited  and  adjudged  against  the  county  as 
herein  provided.  The  clerk  shall  receive  for  every  such 
bill  of  costs  the  sum  of  twenty-five  cents,  to  be  taxed  as 
a  part  of  said  costs. 

Sec.  734.  Justices  of  the  peace  to  make  out  itemized hiUs 
of  costs.     1873-'4,  c.  116,  s.  2. 

It  shall  be  the  duty  of  every  justice  of  the  peace  to  in- 
•  sert  in  the  entry  of  judgment   in   every  criminal  action 


294  COUNTY  REVENUE,  ETC.      [Chap.  18. 

tried  or  otherwise   disposed   of  by  him,  a  detailed  state- 
ment of  the  different  items  of  costs,  and  to  whom  due. 

Sec.  735.  Bills  of  costs  to  be  open  to  the  public.  1873-'4, 
c.  no,  .ss.  1,  2. 

Every  bill  of  costs  shall  at  all  times  be  open  to  the  in- 
spection of  any  person  interested  therein. 

Sec.  730.  Statement  of  costs  for  which  the  county  is  liable 
to  be  (ilert  with  the  board  of  commissioners.  1873-'4, 
c.  lie,  s.  3. 

In  all  criminal  actions  in  the  superior,  criminal  or  in- 
ferior courts,  or  before  justices  of  the  peace,  where  the 
county  is  liable  in  whole  or  in  part  for  such  costs,  it  shall 
be  the  duty  of  the  clerks  of  such  courts,  and  of  the  jus- 
tices of  the  peace,  to  make  out  a  statement  of  such  costs 
from  the  record  or  docket,  within  thirty  days  after  the 
hearing,  trial,  determination,  or  other  disposition  thereof, 
and  file  the  same  with  the  board  of  commissioners  of  tlie 
county. 

Sec.  737.  Costs  to  be  paid  by  prosecutor  in  certain  cases. 
17}>9,  c.  4,  s.  19.  1800,  c.  558,  s.  1.  ISOS-'O,  c.  377. 
1874-'5,  c.  151,  s.  1.  1879,  c.  49,  s.  1.  R.  C,  c.  35, 
s.  37.    C.  C.  P.,  s.  500. 

In  all  criminal  actions,  if  tlie  defendant  be  acquitted, 
nolle proseqiti  entered,  or  judgment  against  him  arrested, 
the  costs  including  the  fees  of  all  witnesses  summoned 
for  the  accused,  whom  the  judge,  court  or  justice  of  the 
peace  before  whom  the  trial  took  place  shall  cei-tify  to 
have  been  proper  for  the  defence,  shall  be  paid  by'the 
prosecutor,  whether  marked  on  the  bill  or  warrant  or  not, 
whenever  the  judge,  court  or  justice  shall  be  of  opinion 
that  there  was  not  reasonable  ground  for  the  prosecution, 
or  that  it  was  not  required  by  the  public  interest.  And 
every  judge,  court  or  justice  is  hereby  fully  authorized  to 
deteimine  who  the  prosecutor  is  at  any  stage  of  a  crim- 
inal proceeding,  whether  before  or  after  the  bill  of  in- 
dictment shall  have  been  found,  or  the  defendant  acquit- 
ted: Provided,  that  no  person  shall  be  made  a  prosecutor 
after  the  finding  of  the  bill,  unless  he  shall  have  been 
notified  to  show  cause  why  he  should  not  be  made  the 
prosecutor  of  record. 

State  V.  Lupton,  63 — 483:  State  v.  n.irr.  63— 51G;  Moore  v.  Com'rs,  Ttt— 
340;  Cantwell  v.  Com'rs  71—154;  State  v.  HodsoD,  74 — 151;  I'egram  v. 
Com'rs,  75—120:  State  v.  Cannady.  78—539;  Stale  v.  Spencer,  81—519; 
State  V.  Cio'iPet.    81—579;  State  v.  Hughes,   83—665:  State  v.    Norwood.  ' 


Chap,  l^.]      COUNTY  REVENUE,  ETC.  295 

84-794;  Slate  v.  Moore,  8^724;  State  v.  Adams,  85-560;  State  v^   Mu.- 
dock.   85-0y8;  State  v.   Powell,   86-040;  State  v.  Owens,  87-565. 

Sec  738.  Prosecutor,  when  imprisonea  for  non-paynie«t 
;tcoJts.  R.C.,  0.35,8.  37.  1800,  c.  558,  s.  1.  187«. 
c.49,s.  2.     1881,0.176.  , .     ,       -,         ,        ,      ., 

Every  such  prosecutor  may  be  adjudged  "ot  only  to 
pay  the  costs,  but  he  shall  also  be  imprisoned  for  the  non- 
ay  mentthek^of,  when  the  judge,  court  or  .iristice  of  the 
See  before  whom  the  case  was  tried  shah  adjudge  that 
the  prosecution  was  frivolous  or  malicious. 

State  V.  Lumbrick,  1  C.  L.  R.,543;  State  v.  Lupton,  63-483;  Pegram  v. 
Com'rs.  75-130;  Slate  v.  Cannady,  78-539;  State  v.  Hughes,  83-Gbo. 

Sec.  739.  Costs  to  be  paid  by  tbe  county  in  certain  cases. 
B.  €.,  o.  28,  s.  8.  K.  S.,  o.  28.  s.  12.  C.  C.  P.,  s.  561. 
1874-T.,  o.  247,  s.  1.  .      ,       .  i   +i 

If  there  be  no  prosecutor  in  a  criminal  action,  anU  the 
defendant  shall  be  acquitted,  or  convicted  and  unable  to 
pay  the  costs,  or  a  nolle  proseqrd  be  entered,  or  judgment 
arrested,  the  county  shall  pay  the  clerks;  sheriffs  consta- 
besfjukices  and  witnesses  one-half  their  lawful  fees 
only-  except  in  capital  felonies  and  in  prosecutions  foi 
foi-lery^  Pe^-iuiy  and  conspiracy,  when  they  shall  receive 

"full  fG6S 

Moore  v.  Com'rs,  70-340;  Cantwell  v.  Com'rs,  71-154;  Bunting  v. 
Com'rs,  74-633;  Clerk's  office  v.  Com'rs.  79-598;  State  v.  C  rosset,  81- 
579;  State  V.  Hughes,  83—665. 

Sec.  740.  Witnesses  for  state,  when  paid  t»y  *'«""ty- ,,^' 
C,  o.  28,  s.  9.  1804,  c.  665.  ss.  1,  2,  3.  1819,  c.  1008. 
1824,  o.  1253.  1     ,     1^      #  +1 

Witnesses  summoned  or  recognized  on  behalt  of  the 
state  to  attend  on  any  criminal  prosecution  m  the  supe^ 
rior  inferior,  or  criminal  courts  where  tlie  defendant  is 
insolvent,  or  by  law  shall  not  be  bound  to  pay  the  same, 
and  the  court  does  not  order  them  to  be  paid  by  the  pros- 
ecutor, shall  be  paid  by  the  county  in  which  the  prosecu- 
tion was  commenced.  And  in  all  cases  wherein  witnesses 
may  be  summoned  or  recognized  to  attend  any  such  court 
to  give  evidence  in  behalf  of  the  state  and  the  defendant 
sh?ll  be  discharged,  and  in  cases  where  the  defendant 
shall  break  jail  and  shall  not  afterwards  be  retaken,  the 
court  shall  order  the  witnesses  to  be  paid. 

Moore  v.  Com'rs,  70-340;  Lewis  v.  Com'rs.  74-194;  Pegram  y.  Com  r9, 
•   75—120. 


296  COUNTY  REVENUE,  ETC.       [Chap.  18. 

Sec.  741.  County  wherein  the  oflfence  is  committed  to  pay 
costs  and  receive  fines,  &c.  K.  C,  c.  28,  s.  10.  1810, 
c.  799,  s.  1. 

In  all  cases  where  the  county  is  liable  to  pay  costs,  that 
county  wherein  the  offence  shall  have  been  charged  to  be 
committed  shall  pay  them.  And  all  fines,  forfeitures  and 
amercements  accruing  in  the  case  shall  be  accounted  for 
and  paid  to  the  treasurer  of  that  county. 
Moore  v.  Com'rs,  70—340;  Pegiam  v.  Com'rs,  75—120. 

Sec.  742.  Costs  incurred  by  county  in  prosecuting  charges 
of  bribery,  in  certain  cases  to  be  a  charge  against  the 
state.     1868-'9,  c.  176,  S.6.     1874-'5,  c.  5. 

The  expenses  which  shall  be  incurred  by  any  county  in 
investigating  and  prosecuting  any  charge  of  bribery,  or 
attempt  to  bribe  any  state  ofticer  or  member  of  the  gen- 
eral assembly  within  said  county,  and  of  receiving  bribes 
by  any  state  officer  or  member  of  the  general  assembly 
in  said  county,  shall  be  a  charge  against  the  state,  and 
the  properly  attested  claim  of  the  county  commissioners 
shall  be  paid  by  the  treasurer  of  the  state. 

Sec.  743.  When  witness  before  grand  jury  to  be  paid  for 
attendance.     1879,  c.  264,  s.  1. 

No  witness  sliall  receive  pay  for  attendance  in  a  crim- 
inal case  before  a  grand  jury  unless  such  witness  shall 
have  been  summoned  by  direction  in  writing  of  the  fore- 
man of  the  grand  jury,  or  of  the  solicitor  prosecuting, 
addressed  to  the  clerk  of  the  court,  commanding  him  to 
summon  such  witness,  stating  the  name  or  names  of  the 
parties  against  whom  his  or  her  testimony  may  be  needed, 
or  shall  have  been  bound  or  recognized  by  some  justice 
of  the  peace  to  appear  before  the  grand  jury. 

Sec.  744.  When  witness  on  the  trial  of  criminal  action  to 
be  paid;  not  more  than  two  witnesses  to  be  paid. 
1871-'2,  c.  186,  s.  3.     1879,  c.  264,  s.  2. 

No  person  shall  receive  pay  as  a  witness  for  the  state 
on  the  trial  of  any  criminal  action  unless  such  person 
shall  have  been  summoned  by  the  clerk  under  the  direc- 
tion of  the  solicitor  prosecuting  in  the  court  in  which  the 
action  originated,  orin  wliich  it  shall  be  tried  if  removed; 
and  no  solicitor  shall  direct  that  more  than  two  witnesses 
shall  be  summoned  for  the  state  in  any  prosecution  for  a 
misdemeanor,  nor  shall  any  county  or  defendant  in  any 
such  prosecution  be  liable  for  or  taxed  with  the  fees  of 
more  than  two  witnesses,  unless  the  court,  upon  satisfac- 


Chap.  18.]      COUNTY  REVENUE,  ETC.  297 

ThSpTdT/the  county  for  atue^*^^^^^^ 

ru?.Sto^?avTZ/sS:h':LeTs-fufs'aS°i 
taxed  in  more  than  one  case  on  the  same  day. 

sec.   745.    On   appeal  from  justice   i-   -iminal  action, 
only  two  witnesses  to  be  bound  over.    187a,  c.  -t>4, 

Whe'n  the  defendant  shall  appeal  from  the  judgmenj 
^ftheiustice  of  the  peace,  in  any  cnminal  action,  it 
shaU  bi  he  duty  of  snch  justice  of  the  peace  to  select  and 
hind  ovei  on  behalf  of  the  state  not  n.ore  than  two  wit- 
ne  ses  and  neker  the  county  nor  the  detendan  shaU 
hP  liable  for  the  fees  of  more  than  two  witnesses  on  such 
aoDetluSess  additional  witnesses  shall  be  summoned  by 
Sder  of  the  appellate  court  as  provided  in  the  preceding 
section. 

Sec  746.  Witnesses  to  be  discharged  by  «o""J«/' 7l?« 
shaU  me  a  certificate  of  their  attendance  with  cleik. 
1879  c.  264,  s.  4.     1881,  c.  312,  s.  1. 

Tt  shall  be  the  duty  of  all  solicitors  prosecuting  in  the 
ni  ^nn,  t^  as  each  criminal  prosecution  shall  be  dis- 
^'Iprl  of  bvtriS  leraoval  conti^nuance  or  otherwise  to 
STand  dfschSe  he  witnesses  for  the  state,  either 
My  or  otlerw^  as  the  disposition  o  the  case  may 
Squire;  and  he  shaU  thei;eupon  file  ^-^h  tjie  derk  of  the 
court  a  certificate  giving  the  names  of  ^^^^  witnesses  en ^ 
titled  to  prove  the.,  a   e^^^^^^^^^ 

ofSr  fo™  and  bSil  thereof  shall  be  furnished  to 
tie  solSor  by  the  clerk  at  the  county  expense,  viz: 

I.-ORTH   CAROLINA.  )      ^ Court Term    188 

County.      \     State  vs .'.'.'.'.'.'..'..'.'...... 

Witness 

discliargeti day  of  ;.'"."..   . .' '. Solicitor. 

sec.  747.  When  court  to  order  county  to  pay  defendant's 
..  1S79   c   264   s.  4.     1881,  c.  oi--,  »•  ^' 

When' the'defendLit  shall  be  acquitted,  a  nolle  prose^ 
g Centered!  or  judgment  aganf  ^  hi-  a-es  ed,  and  i 


298  COUNTY  REVENUE,  ETC.       [Chap.  18. 

duly  sabpojnaed,  bound  or  recognized,  in  attendance 
and  that  they  were  necessary  for  his  defence,  it  shall  be 
the  duty  of  the  court,  unless  the  prosecutor  be  adjudo-ed 
to  pay  the  costs,  to  make  and  file  an  order  in  the  canse 
du-ectnig  that  said  witnesses  be  paid  bv  the  county  in 
such  manner  and  to  such  extent  as  is  au'thoi'ized  by  "law 
for  the  payment  of  state's  witnesses  in  like  cases. 

Sec.  748.  No  witness  entitled  to  liis  fees  unless  his  name 
is  inclurted  in  the  certificate  of  the  solicitor  or  order  of 
court.     1879,  c.  264,  s.  4.     1881,  e.  312,  s.  2. 

No  county,  prosecutor  or  defendant,  shall  be  liable  to 
pay  any  witness,  nor  shall  his  fees  be  embraced  in  the 
bill  of  costs  to  be  made  up  as  hereinbefore  nrovided  un- 
less his  name  be  certified  to  the  clerk  by  the  solicitor  or 
nicluded  in  the  order  of  the  court  as  required  by  the  pre- 
cedmg  section  :  Provided,  that  the  couit,  at  any  time 
withni  one  year  after  judgment,  may  order  that  any 
witness  may  be  paid,  who  for  any  good  reason  satisfac- 
tory to  the  court  failed  to  have  his  fees  included  in  the 
original  bill  of  costs. 

Sec.  749.  Confession  of  judgment  to  secure  fine  and  costs 
not  to  operate  as  a  discharge  of  original  judgment 
1879,  c.  264,  s.  6. 

In  cases  where  the  court  permits  a  defendant  convicted 
of  any  criminal  offence,  to  give  bond  or  confess  iudo-- 
ment,  with  sureties  to  secure  the  fine  and  costs  which 
may  be  imposed,  the  acceptance  of  such  security  shall  be- 
upon  the  condition  that  it  shall  not  operate  as  a  dis- 
chai-ge  of  the  original  judgment  against  the  defendant 
nor  as  a  discharge  of  his  person  from  the  custody  of  the- 
law  until  the  fine  and  costs  are  paid. 

Sec.  750.  Defendant  failing  to  pay  fine  and  cost  may  again 
be  arrested.     1879  c.  264,  s.  7. 

In  default  of  payment  of  such  fine  and  costs,  it  shall 
be  the  duty  of  the  court  at  any  subsequent  term  thereof 
on  motion  of  the  solicitor  of  the  state  to  order  a  capias 
to  issue  to  the  end  that  such  defendant  mav  be  again 
arrested  and  held  for  the  fine  and  costs  until'discharged 
according  to  law. 

Sec.  751.  Claims,  &c.,  .against  county  numbered  by  clerk 
and  copy  furnished  to  chairman  anuuiillv.   K.  C.,  c.  28 
S.  12.     1793,  c.  387,  s.  1. 
The  clerk  of  the  board  of  commissioners,  if  so  ordered 


CH.P   IS]      COUNTY  KEVENUE,  ETC.  299 

the  same. 

sec.  752.  PubHcatlon  to  ..  »»^-.-»t"\;;^!c°Si!: 
r°lSS8.t"?rs.?i.'-V8f3':.*:  c.  .«.    1870-7,  «. 

Ttotmrrshali  cluse  t.,  be  posted  at  the  court  house 
■T,       flJl^nvs  after    each    regular  December  mcetiUK 

SSed  ancUhe  amount  allowed;  and  ^^f  ^=^,t  ^he    am 

strvS^iL°perinr«onb?u^nranV. 

a  cent  a  word. 

see.  753.  Power  <>y,oaM  of  coj^niy^cvnerst^aisp^  of 

ThrbStf  Siil'onel-s'is  lnv;sted  with  fnll 
power  to  drect  the  application  of  all  moneys  ansmg  by 
?h  ue  of  this  chapter  for  the  purposes  herem  men  onecl, 
IncUo  any  other  ^ood  and  necessary  purpose  foi  the  use 
of  the  county.  ai_7ii 

state  V.  McAlpin.  4  Ired.,  140;  Abernatby  v.  Phifer,  84-.11. 

Sec     754.   Ifo  account   shall  be  audited  unless  itemized 
knd  verified  by  claimant.     1868,  c.  20,  s.  lO. 

No  account  shall  be  audited  by  the  board  for  any  ser- 
vices or  dTsbursements,  unless  it  is  first  n^adeoutm  items 
Ind  has  attached  to  and  filed  with  it  the  affidavit   of  the 

clairnanttS  ^^^  ^"fV^^ 

ffct  made  and  rendered,  and  that  no  part  thereof  has 
been  paid  or  satisfied.  Ekch  account  shall  state  the  na^ 
ture  of  tlie  services,  and  where  no  specific  compensat  on 
Snrovided  by  law,  it  shall  also  state  the  time  necessardy 
devoted  to  ttfe  per  orraance  thereof.     The  board  may  dis- 


SOO  COUNTr  REVENUE,  ETC.      [Chap.  18. 

allow  or  require  further  evidence  of  the  account,  notwith- 
standing the  verification. 
Leach  v.  Com'rs,  84^839. 

Sec.  755.  Accounts  to  be  numbered.    1868,  c.  20,  s.  12. 

All  accounts  presented  in  any  year,  beginning  at  each 
regular  meeting  in  December,  shall  be  numbered  from 
one  upwards,  in  the  order  in  which  they  are  presented; 
and  the  time  of  presentation,  the  names"  of  the  persons 
in  whose  favor  they  are  made  out,  and  bv  whom  pre- 
sented, shall  be  carefully  entered  on  the  minutes  of  the 
board;  and  no  such  account  shall  be  withdrawn  from  the 
custody  of  the  board  or  its  clerk,  except  to  be  used  as  evi- 
dence in  a  judicial  proceeding,  and  after  being  so  used  it 
shall  be  promptly  returned. 

Sec.  756.  Claims  against  counties,  cities  and  towns  to  be 
presented  for  payment  within  two  years  alter  maturity 
or  forever  barred  of  collection.     1874-'5,  c.  243,  s.  1. 

AU  claims  against  the  several  counties,  cities  and 
towns  of  this  state,  whether  by  bond  or  otherwise,  shall 
be  presented  to  the  chairman  of  the  board  of  county 
commissioners  or  to  the  chief  officers  of  said  cities  and 
towns,  as  the  case  may  be,  within  two  years  after  the 
maturity  of  such  claims,  or  the  holders  of  such  claims 
shall  be  forever  barred  from  a  recovery  thereof. 

Wharton  v.  Com'rs,  82—11;  Hawley  v.  Com'rs,  82—23;  Moore  v  Com'rs 
87—309. 

Sec.  757.  Claims  against  municipal  corporations  mu.st 
be  presented  for  payment  and  refused,  before  an  ac- 
tion can  be  maintained  because  of  their  non-pay- 
ment. 

No  person  shall  sue  any  city,  county,  town,  or  other 
municipal  corporation  for  any  debt  or  demand  whatso- 
ever unless  the  claimant  shall  have  made  a  demand  uiwn 
the  proper  municipal  authorities.  And  every  such  action 
shall  be  dismissed  unless  the  complaint  shall  be  verified 
and  contain  the  following  allegations:  (1)  That  the  claim- 
ant presented  his  claim  to  the  lawful  municipal  authori- 
ties to  be  audited  and  allowed,  and  that  they  had  neglected 
to  act  upon  it,  or  had  disallowed  it;  or  (2)  that  he  had 
presented  to  the  treasurer  of  said  municipal  corporation 
the  claim  sued  on,  which  had  been  so  allowed  and  audited, 
and  that  such  treasurer  had  notwithstanding  neglected 
to  pay  it. 

Love  V.  Com'rs,  64—706;  Jones  v.  Com'rs,  73—183;  Cromartie  v  Com'rs, 
85—211. 


Chap.  18.]     COUNTY  REVENUE,  ETC.  301 

Sec    758.  Finance  committee.    B.  C,  c.  28,  s.  17.    1838, 
c.31,s.  1.    1871-'2,c.  71,  s.  1.  „      «     + 

The  iustices  of  the  peace  at  their  meeting-  on  the  first 
Monday  in  June  in  each  year,  a  majority  ot  them  being 
rn-esent  may  elect  by  ballot  three  discreet,  intelhgent 
talpaying  citizens,  to  be  known  as  the  "finance  com- 
mftceef"  whose  duty  it  shall  be  -to  inquire  "^to  inves^^^ 
gate  and  report  by  pubhc  advertisement,  at  the  com  t 
house  and  one  public  place  in  each  township  ot  the 
county  or  in  a  newspaper,  at  their  option,  if  one  be  pub- 
Shed  n  the  county,  a  detailed  and  itemized  account  of 
the  condition  of  the  county  finances,  together  with  any 
SherSiformationappei^^  to  any  funds  misappix)- 

priation  of  county  funds,  or  any  malfeasance  m  ofiice  by 
any  county  officers. 

King  V.  Hunter,  65-603;  Moore  v.  Com'rs,  87-209. 

Sec.  759.  Finance  committee  may  send  for  persons  and 
papers;  and  administer  oaths.  1831,  c.  31,  s.^. 
1871-'3,  c.  71,  s.  2.    B.  C,  c.  28,  s.  9.     1883,  c.  252. 

The  finance  committee  shall  have  power  and  authority 
to  send  for  persons  and  papers,  and  to  administer  oaths; 
anl  any  peison  failing  to  obey  their  summons  or  to  pro- 
duce promptly  any  paper  relating  or  supposed  to  relate 
toanrmTte/app'ertaimngto  the  duties  ot  the  finance 
Committee  shaU  be  guilty  of  a  misdemeanor,  and  on  con- 
?;^iS^  in  the  superior  co'urt,  shall  be  fined  and  imprison- 
ed at  the  discretion  of  the  court. 

Sec  760.  Penalty  on  officer  failing  to  settle  after  ten 
kays"  notice.    B.  C,  c.  28,  s.  19.     1831,  c.  31,  s.  3. 

If  any  clerk,  sheriff,  constable,  county  treasurer,  regis- 
ter of  deeds,  justice  of  the  peace,  or  other  officer  or 
commissioner,  who  may  hold  any  county  money,  shall 
fa  1  duly  to  account  for  the  same,  the  finance  com- 
mittee shall  give  such  person  ten  days'  Pf  .^i^^f  jo^i^^; 
in  writing,  of  the  time  and  place  at  which  they  will 
attend  to  make  a  settlement;  and  every  officer  receiving 
notice  and  faiUng  to  make  settlement  as  req^red  by  this 
chapter,  shaU  forfeit  the  sum  of  five  hundred  dollars  to 
be  sued  for  in  the  name  of  the  state  and  prosecuted  for 
the  use  and  at  the  expense  of  the  county,  unless  the 
court  shall  release  the  officers  from  the  torteiture. 

Sec.    761.    Finance    committee    to    publish    statement. 
1871-'2,  c.  71,  s.  3.  .  ,       ^  1 

It  shall  be  the  duty  of  the  finance  committee  to  make 


302  COUNTY  EEVENUE,  ETC.      [Chap.  18. 

and  publish  their  report  as  hereinbefore  directed  on  or 
before  the  first  Monday  of  December  in  each  year. 

Sec.  762.  Oath  of  members  of  flusmee  committee.  1871- 
'3,  c.  71,  s.  4. 

The  members  of  the  finance  committee  before  entering 
upon  their  duties  shall,  before  the  clerk  of  the  superior 
court,  subscribe  to  the  following  oath  or  affirmation  : 

"I,  A.  B.,  do  solemaly  swear  (or  iifflrtn)  that  I  will  diliseiitly  inquire  in- 
to all  matters  relating  to  the  receipts  and  disbursements  of  county  funds 
and  a  true  report  make,  without  partiality.     So  help  me,  God." 

Sec.  763.  Compensation  of  finance  committee.  1871-'2, 
c.  71,s.  5.     1873-'4,  c.  107. 

The  members  of  the  finance  committee  shall  each  re- 
ceive such  compensation  for  the  performance  of  his 
duties  as  the  board  of  commissioners  may  allow,  not  ex- 
ceeding three  dollars  per  day;  but  they  shall  not  be  paid 
for  more  than  ten  days  in  any  one  year. 

Sec.  764.  Penalty  on  clerks  and  other  county  officers  for 
failing  to  account  for  and  pay  over  county  funds.  K. 
C,  c.  28,  s.  7.  1808,  c.  756.  1809,  c.  769.  1813,  c. 
864.     1830,  c.  1,  ss.  11,  12,  13. 

If  any  clerk,  sheriff,  justice  of  the  peace,  or  other  offi- 
cer, shall  fail  or  neglect  to  account  for  and  pay  over  as 
required  by  law  any  taxes  on  suits,  or  any  fines,  forfeit- 
ures and  amercements  as  required  by  this  chapter,  or 
shall  fail  to  make  the  returns  herein  specified,  he  shall 
forfeit  and  pay  five  hundred  dollars,  to  be  recovered  in 
the  name  of  the  board  of  commissioners  for  the  use  of 
the  county. 

Sec.  765.  Failure  of  clerk  or  other  officer  to  perform  re- 
quirements of  this  chapter  a  misdemeanor.  1879,  c. 
96,  S.6. 

If  any  clerk,  justice  of  the  peace,  sheriff,  register  of 
deeds,  constable,  commissioner,  county  treasurer,  or  other 
county  officer,  shall  neglect  to  perform  any  of  the  require- 
ments of  this  Code,  he  shall  be  guilty  of  a  misdemeanor, 
and  upon  conviction  shall  be  fined  or  imprisoned,  in  the 
discretion  of  the  court. 


Chap.  19.]         COUNTY  TREASURER. 


303 


CHAPTER     NINETEEN. 
COUNTY  TEEASUREE. 


Section. 

to  account  and  pay  over  funds 
when  collected. 

776.  Penalty  for  failure  of   treasurer 

to  perform  duties. 
'77.  County  treasurer  to  pay  no 
claim  against  tbe  county  un- 
less the  board  of  commission- 
ers shall  audit  it. 
nS.  Property  held  in  trust  by  any 
person  for  a  county  to  be  held 
and  administered  by  the  county 
treasurer. 

779.  The  county  treasurer  to  take 
charge  of  all  such  trust  fuuds 
and  properly. 

780.  The  board  of  commissioners  to- 
keep  a  record  of  such  property 
or  funds. 

781.  County  treasurer  to  exhibit  to 
the  board  of  commissioners, 
the  amount  and  condition  of  all 
trust  funds  and  property. 

1868-'9, 


Section. 

706.  County  treasurer  to  give  good 
bond. 

767.  Delivering    of     books,    papers 

and  money  lo  successor. 

768.  Justices    of     the     peace    may 

abolish  office  of  treasurer. 

769.  Bond  of  sheriff,  acting  as  treas- 

urer, to  cover  his  liabilities  as 
such. 

770.  County    treasurer    to     include 

party  acting  as  such.     Com- 
pensation. 

771.  The  board  of  commissioneis  to 

bring    action     on    treasurer's 
bond. 
773,  County  treasurer  not  to  specu- 
late in  county  claims. 

773.  Duties     of     county    treasurer 

prescribed. 

774.  Compensation     of     examining 

committee. 

775.  Penalty  for  refusal   by  officers 

Sec.  766.  County  treasurer  to  give  good  bond. 

°  ;Sef  to'ta  :W~'ed  by>he  boa.-;,  0    c^^^^^^^^^ 

"s  treasurer,  and  render  a  .lust  ,aud  true  ^«»™'^*,;l|''«f 

,„  the.board  "h-  fj"™*  'g  ^^Tbo"  d  sLaH  be  at  least 
commissioners,  ilie  penalty  oi  mb  "\^'  ,  nrecedine: 
double  the  amount  ot^  county  revenue  foi  the  piececlug 
year,  and  the  board  of  commissioners  at  anv  time,  by  . 
order  may  requh-e  him  to  renew  or  enlaige  his  oona.  a 
?a?iui'e?o  do  so  within  ten  days  after  the  service  of  such 


304  COUNTY  TREASURER.  [Chap  19. 

an  order  shall  vacate  his  office  and  the  board  shall  ap- 
point a  successor. 

Kilburn  v.  Latham,  81—313;  Com'is  v.  Magnin,  86—285. 

Sec.  767.  Delivering  of  books,  papers  and  money  to  suc- 
cessor.    1808-'9,  c.  157,  s.  5. 

Whenever  the  right  of  any  county  treasurer  to  his 
office  expires,  the  books  and  papers  belonging  to  his  office, 
and  all  moneys  in  his  hands  by  virtue  of  his  office  shall, 
upon  his  oath,  or  in  case  of  his  death,  upon  the  oath  of 
his  personal  representative,  be  delivered  to  his  successor. 

Com'rs  V.  Magnin,  86—285. 

Sec.  768.  Justices  of  the  peace  may  abolish  office  of  treas- 
urer. R.  C,  c.  29,  s.  lO.  1852,  c.  6.  1876-'7,  c.  141, 
s.  2.    1881,  c.  362. 

The  justices  of  the  peace  in  any  county  may  abolish 
the  office  of  county  treasurer;  and  thereupon,  the  duties 
and  habilities  attached  to  the  office  shall  devolve  upon 
the  sheriff,  who  shall  be  ex-officio  county  ti-easurer.  And 
in  any  county  where  the  office  of  treasurer  has  been 
abolished,  the  justices  of  the  peace  may  also,  if  they  shall 
deem  it  expedient  to  do  so,  restore  the  office  of  treasurer. 

Sec.  769.  Bond  of  sheriff,  acting  as  treasurer,  to  cover  his 
liabilities  as  such.    1879,  c.  202,  s.  1. 

In  counties  where  the  office  of  county  treasurer  may 
be  abolished,  and  where  the  sheriff  is  autliorized  to  per- 
form the  duties  of  county  treasurer,  the  bond  he  gives  as 
sheriff  shall  be  construed  to  include  his  liabilities  and 
duties  as  such  county  treasurer,  and  may  be  increased  to 
such  amount  by  the  board  of  commissioners,  as  may  be 
deemed  necessary  to  coA'er  the  trust  funds  coming  into 
his  hands. 

Sec.  770.  County  treasurer  to  include  person  acting  as 
such.    Compensation.      1874-'5,  c.  49.     1879,  c.  202, 

S.  2. 

Tho  office  of  county  treasurer  shall  always  be  construed 
to  refer  to,  and  include,  the  person  authorized  by  law  to 
perform  the  duties  of  that  office  in  any  county,  if  there 
is  no  county  treasurer  therein.  The  county  treasurer 
shall  be  ex-officio  the  treasurer  of  the  county  board  of 
education. 

The  said  treasurer  shall  receive  as  a  compensation  in 
full  for  all  services  required  of  him  such  a  sum  not  ex- 
ceeding one  half  of  one  per  cent,  on  moneys  received  and 


CHAP.  19.]         COUNTY  TREASURER.  305 

not  exceeding  two  and  a  1-/^  If  ^^^iS^rrS  the 
bursed  by  him  as  ^he  ^  J^  ,*^f^t'?^''Si^^^ 

his  disbursements.  •  ,       ,r      ■ ,  sr   2S5 

Com-rs  V.  Magain.  78-181;  Com'rs  v.  Magna,.  86-28o. 
sec   771.  The  board  of  commissioners  to  bring  action  on 
»ec.  «  »  X.  i  1  cfiS-'9   c.  157»  s.  O. 

t.«i  V  M.s.m,  I8-181i  C""'"  ''  M""!""'  "^'*'- 
Sec  772.  C«....tJ  tre»su,.er    no.  to  speculate  iu   eo.mt, 

county  at  less  than  ;''.''^«J,^;"^;j,'„„  J  he  actually 
charge  the  couuty  ^  Sf f'f  |,^Xa  of  commissioners  may 

forfeit  his  office. 

n^'.!«.'^:r.°!cr^a,^!•■>s«^^tt«7.'^;•. 

1879,  c.  33,  s.  1. 

It  shaU  be  the  duty  of  the  treasurer- 

(1)   TO   KEEP   COUNTY   MONEYS. 

To  receive  all  moneys  belongin^to  the  c»unty,  and^all 

other  "»°'=yf„l^^"  ?  ff*m  hi,  o^^^^^^  and  to  ap' 

^^theT^id  re'nS' acooTnt  o£  them  as  required  by 

79_363;  Com'rs  v.  McPherson.  79-524;  CiomaiUe  v.  ^om 
(2)   TO   KEEP  TRUE   ACCOUNTS. 


308  COUET  HOUSES,  ETC.  [Chap.  20. 

Sec.  779.  The  county  treasurer  to  take  charge  of  all  such 
trust  tunds  and  property.     1869-'70,  e.  85   s   «> 

It  shall  be  the  duty  of  Ihe  county  treasurer  7o  take 
€narge  ot  all  such  trust  funds  and  property;  but  ho  Sal! 
not  do  so  without  giving  a  bond  piyable  to  the  s  at^^n 
?n?.T^*^-.K^i'.''^^  *^^^  estimated  value'  of  said  propertv  ol 
£±'fl'*'?f '''?.?'■  ^°^^  ^^^-^t^e^'  each  of  4om  sLSl 
be  worth  at  least  the  amount  of  the  penalty  of  the  bond 
over  and  above  alibis  liabilities,  and  property  exempt 
from  execution,  which  bond  shall  be  taken  by  the  boS  d 
+ifri"''''!?"l''''n  ^''^  ^^a"  ^e  recorded  and  otherwise 
treasurer ^"^  '   ""'  ^^^    ''^^^^^  ^°^^  ^^    ^^^ 

Sec.  780.  The  board  of  commissioners  to  keep  a  record  of 
such  property  or  funds.    1869-'70,  c.  85,  s.  3 

The  board  of  commissioners  shall  keep  a'proper  record 
ot  all  such  trust  property  or  charitable  funds,  and  when 
necessary  shall  institute  proceedings  to  recover  for  the 
treasurer,  all  such  as  may  be  unjustly  withheld. 

Sec.  781.  County  treasurer  to  exhibit  to  the  board  of 
commissioners  the  amount  and  condition  of  all  trust 
funds  and  property,     1869-'70,  c.  85,  s.  4. 

The  county  treasurer,  whenever  he  is  required  to  ex- 
Hnn  if  ff  ''^''^  ?^  commissioners  the  financial  condi- 
tion of  the  county,  shall  exhibit  also  distinctly  and 
separately  the  amount  and  condition  of  all  such  ti-ust 
tunds  and  property,  how  invested,  secured,  used  and 
other  particulars  concerning  the  same. 


CHAPTER  TWENTY. 
COUET  HOUSES,  PEISONS  AlfD  WOEK  HOUSES. 


Section. 

783.  Court  houses  and  jails  to  be 
built  and  kept  iu  repair  by  the 
board  of  commissioners. 

783.  Jails  to    have    separate    apart- 

ments. 

784.  Common  jails  to  be  heated  by 

furnaces,  stoves  or  otherwise. 


Section. 

785.  The  grand  jury  to  visit  the  jail 

at  each  court. 

786.  Board    of    commissioners  may 

establish  public  work  houses. 

787.  Board  to  appoint  directors.their 

duties,  <&c. 


CHAP.  20.]  COURT  HOUSES,  ETC.  309 

I  Section. 
Section.  ^     j  ^  ^.,r,     7q6    Board    may    issue    bonds   to 

788.  Boardtoappmntabondedman-    796.  B-^^^^.^J^^^  ,„„,,, 

ager,  his  duties   &c.  Whenever  a  work  bouse  estab- 

789.  Compensation  of  manager  and    .97.  ^.^^-^^^^.^^^^  ^,  ^,,,a  to 

,,is  subordma  es.  ^^^  ^^^^  ^^  g^^^,„,,. 

790.  Board  empowered  to  levy  taxes  y  brought    in   name 
■701    Penalties  incurred  by  abscond-    798.  Suit    to   oe   urougut 

791.  1  enaiiiLb  iin,uii^.u     j  |  ^^  ■^^„^a  „f    rnnntv  comniis- 
ins  offenders 


793.  Vagrant   persons    may    be    re- 
leased. 

793.  Duties  of  sheriffs. 

794.  Managers   to    assign    offenders 

employment. 

795.  Term  of  oflBce  of  directors. 


of  board  of    county  commis- 
sioners. 

799.  Any  two  or  more  counties  may 

jointly  establish  work  houses. 

800.  A  general  board    of    directors 

appointed. 

801.  General  man.ager  appointed  by 

the  general  board  of  directors. 


sec  782.  Court  Houses  and  jails  to  be  built  and  kept  m 
;Jna1r  bv  the  board  of  commissioners.  B.  C,  c.  30, 
r  1      1741    c.  43,  ss.  1,  2.     1795,  c.  432,  s.  1.     1S16, 

Thprp  shall  be  kept  and  maintained  in  good  and  suffi- 
cient repair  in  every  county,  a  court  house  and  common 
iSl  at  the  expense  of  the  county,  wherein  the  same  are 
sttuated;  and  the  boards  of  commissioners  of  tlie  several 
counties  respectively  shall  lay  and  collect  taxes,  from  year 
S  year,  as  long  as  may  be  necessary,  for  the  purpose  of 
buUdhik,  repairing  and  furnishing,  their  several  court 
ho  ses  and  mils,  in  such  manner  as  they  shall  think 
prope?;  and^  from  time  to  time  sha  order  and  estab- 
iish^uch  rules  and  regulations  for  the  preservation  of 
the  court  house,  and  for  the  government  and  manage- 
ment of  the  prisons,  as  may  be  conducive  to  the  interests 
S  the  public,  and  the  security  and  comfort  of  the  persons 

^^S^atfv.  Justices,  4  Hawks.  194;  McKenzie  v.  Buchanan,  6  Jon.,  31. 

^Po    783.   Jails   to   have    separate    apartments.      K.   C, 
c   30   s   2.     1795,  c.  433,  s.  4.     1816,  c.  911,  s.  1. 

Tlie  common  jails  of  the  several  coimties  shall  be  pro- 
vided with  at  least  five  separate  and  suitable  apartments; 
one  for  the  confinement  of  white  male  criminals;  one  tor 
^4iite  female  criminals;  one  for  colored  male  criminals; 
one  for  colored  female  criminals;  and  one  for  other  pris- 
oners. 

Sec.  784.  Common  jails  to  be  Ueated  by  furnaces,  stoves, 
or  otherwise.     1879,  c.  25. 

It  shall  be  the  duty  of  the  board  of  commissioners  in 


810  COURT  HOUSES,  ETC.  [Chap.  20. 

every  county  to  have  the  common  jails  so  heated  by  fur- 
naces, stoves,  or  otherwise,  as  to  render  them  warm  and 
comtortable  And  any  county  commissioner  failijio-  to 
comply  with  the  requiiements  of  this  section,  shall  be 
liable  to  indictment,and  upon  conviction,  may  be  punished 
cour^  *^^  ^"^l^"^'^^"'^'!*'  <>i'  both,  in  the  discretion  of  the 

Sec   785.  Tlie  grand  jury  to  visit  the  jail  at  each  court. 
K.  C,  c.  30,  s.  3.     1816,  c.  911,  s.  3. 

.Every  grand  jury,  while  the  court  is  in  session,  shaU 
visit  the  ]ail  examine  the  same,  and  especially  the  apart- 
ments in  which  prisoners  shall  be  confined":  and  thev 
shall  report  to  the  court  the  condition  of  the  iail  and  of 
^'^^.P^J2'''^}\(^onf\ned  therein,  and  also  the  manner  in 
which  the  jailor  has  discharged  his  duties. 

Sec.  786.  Board  of  commis.sioners  may  establish  public 
work  houses.     1866,  c.  35,  s.  1. 

The  board  of  commissioners  may,  when  they  deem  it 
necessary,  establish  within  their  respective  counties  one 
or  more  convenient  houses  of  correction,  with  workshops 
and  other  suitable  buildings  for  the  safe  keeping,  correct- 
ing governing,  and  employing  of  offenders  legally  com- 
mitted thereto.  They  may  also,  to  that  end,  procure 
machmery  and  material  suitable  for  such  employment  in 
|aid  houses,  or  on  the  premises;  and  moieover  attach 
thereto  a  farm  or  farms;  and  all  lands  purchased  for  the 
purpose^s  aforesaid,  shall  vest  in  the  directors  he.einafter 
provided  for,  and  their  successors  in  office.  The  said 
board  shall  ahso  have  power  to  make,  from  time  to  time 
such  rules  and  regulations  as  it  may  deem  proper,  for  the 
kind  and  mode  of  labor,  and  the  general  management  of 
the  said  houses. 
State  V.  GiiiTcll,  82—580. 

Sec.  787.  Bo.ard  of  conunissiouers  to  appoint  directors; 
duties  of  directors.    1866,  c.  35,  s.  a. 

The  board  of  commissioners  shall,  annually,  appoint 
not  le.ss  than  five  nor  more  than  nine  directors  for  each 
house  of  correction  which  may  be  established,  whose 
duty  it  shall  be  to  superintend  and  direct  the  manager 
hereinafter  named  m  the  discharge  of  his  duties;  to  visit 
saKl  houses  at  least  once  in  every  three  months;  to  see 
that  the  laws  rules  and  regulations  relating  thereto  are 
duly  executed  and  enforced,  and  that  the  persons  com- 
mitted  to   his   charge   are  properly  cared   for,  and  not 


I 


Chap.  20.]  COURT  HOUSES,  ETC.  311 

oKnc^-l  nr  oDDi-essed      The  directors  shall  keep  a  journal 

receipts  and  expenditures  of  the  institution.     They  shall 
a   oTuake  such^by-laws  and  regulations     or   ^e   govern 

^X  directoisthaU  r  t^o'r  the  services  rendered,  by 

The  coSy  4a  urer,  elch  director  first  making  appear  to 
he  sSIction  of  the  board  of  county  comm^s.one^.  by 
his   oath     the    character    and    extent    ot    tne    seiviceb 
rendered  for  which  he  claims  compensation;  and  such 
payment  shall  be  made  by  the  county  treasurer  out  of  any 
funds  in  his  hands  not  otherwise  appropriated. 
Sec   788.  The  board  of  commissioners  to  appoint  a  bonded 
manager;  duties  of  manager.    1866,  c.  3o,  s.  S. 
The  board  of   commissioners   shall  appoint  a  manager 
for  each  house  or  establishment,  who  shall  give  a  bond 
wfthtwoormore   able  sureties,  in   such  sum  as  may  be 
ZuiS    payable  to  the  state  of  North  Carolina   condi- 
S"ed  for?he  faithful  discharge  of  ^^^  duties^    He  sha^ 
bold  his  oface  dur  ng  the  pleasure  of  the  board,  ana  ue 
o+  in  tmes  under  the  supervision  of  the  directors;  and  m 
cLfo    STiimX^^        which  thev  shall  be  the  sole 
indeeV  he  may  be  forthwith  removed  by  them  and  a  suc- 
Jeima  lSd,who  shall  discharge  the  duties  of  the 
ffi  a  ,nntil  another  manager  shall  be  appointed  by  the 
Wd  o?  cimm  ssionS.    It  shall  be  the  duty  of  the  man- 
age  to  recei^'e  all  persons  sent  to  the  house  of  correc- 
tfon  to  klep  tliem  during  the  time  of  their  sentence,  and 
to  enSloy  and  control  them   according  to  the  rules  and 
reSons  established  therefor.     He   shall  have  t^ie  d  - 
rection  and  control  over  the   subordinate   oftcers   ass  st- 
ants  and  servants,  who  may  be  appointed  by  the  direc;- 
toit     He  shaH  make  montlily  reports  to  the  direc  ors  of 
his  management  of  the  institution   and  his  receipts  and 
expenditures. 

Sec.  789.  Compensation  of  manager  and  his  subordinates. 
1860,  f.  ;i5,  s.  4. 
The  said  board  of  commissioners  shall  direct  ^^l^at  com- 
pensation the  manager  and  such  subordinate  officers,  as- 
SJanis  and  servant!,  as  shall  be  appointed,  shall  receive, 
and  shall  provide  the  payment  t.iereot. 


ai2  COUET  HOUSES,  ETC.  [Chap.  20. 

See.  790.  The  board  of  commissiouers  empowered  to  lew 
taxes.     1806,  c.  35,  s.  5. 

The  board  of  commissioners,  with  the  assent  of  a  ma- 
jority of  the  justices  of  the  peace,  in  addition  to  the  ordi- 
nary county  taxes,  shall  also,  at  the  time  said  taxes  are 
laid,  lay  such  tax  as  maybe  necessary  to  carry  into  effect 
this  chapter,  which  shall  be  collected  and  paid  to  the 
manager  at  the  same  time  as  other  county  taxes  are  to 
be  paid;  for  which,  and  such  other  funds  as  may  come 
into  his  hands  as  manager,  he  shall  be  accountable-  and 
he  shall  disburse  the  same  under  the  authority  of  the  di- 
rectors. 

Sec.  791.  Penalties    incurred    by    absconding    offenders. 
1866,  c.  35,  s.  6. 

If  any  offender  shall  abscond,  escape  or  depart  from 
any  house  of  correction  without  license,  the  manaoer 
shall  have  power  to  pursue,  retake  and  bring  him  back 
and  to  require  all  necessary  aid  for  that  purpose:  and 
when  brought  back,  the  manager  may  confine  hnn  to  his 
work  by  tetters  or  shackles,  or  in  such  manner  as  he  may 
judge  necessary,  or  may  put  him  in  close  confinement  in 
the  county  jail  or  elsewhere,  until  he  shall  submit  to  the 
regulations  of  the  house  of  correction  ;  and  for  every 
escape  each  offender  shall  be  held  to  labor  in  the  house 
ot  correction  for  the  term  of  one  month  in  addition  to  the 
time  for  which  he  was  first  conmiitLed. 

Sec.  792.  Vagrant  persons  may  be  released.     1866  c.  35 

s.  7.  ' 

If  any  person  shall  behave  well  &nd  reform,  he  may 
on  the  certificate  of  the  manager,  be  released  by  the  di- 
rectors, if  committed  as  a  vagrant;  but  if  otherwise  com- 
mitted, he  may  be  released  by  the  committing  authority 
upon  the  certificate  of  the  manager  and  directors. 

Sec.  793.  Duties  of  sheriffs.    1866,  c.  35,  s.  8. 

Whenever  any  person  shall  be  sentenced  to  a  work 
house,  he  shall  forthwith  be  committed  bv  the  court  to 
the  custody  of  the  siierifif.  to  whom  the  clerk  shall  imme- 
diately furnish  a  certified  copy  of  the  sentence,  in  which 
at  shall  be  stated  (if  the  fact  be  so)  that  the  offender  is 
conimitted  as  a  vagiant.  The  sheriff  shall  convey  the  of- 
fender to  the  work  house,  and  deliver  him  to  the  mana"-er 
with  the  certified  copy  aforesaid,  and  take  the  manager's 
receipt  for  the  body;  which  receipt  the  slieriff  shall  re- 
turn to  the  clerk  of  the  board  of  commissioners,  with  his 


Chap  20  ]         COURT  HOUSES,  ETC.  313 

pose   and  file  the  original  with  the  papers  in  the  case. 
Sec.  794.  Manager  to  assign  offenders  employment.   1806, 

The""  manager  shall  assign  to  each  person  sent  to  the 
work  hcSe  tie  kind  of  work  in  which  such  person  is  to 
be  employed. 

Sec   795.  Term  of  office  of  directors.    1866,  c.  35,  s.  10. 

%ie  directors  shall  continue  in  office  until  others  shall 
be  ap^inted^  and  if  any  vacancy  happens  amoug  them, 
It  shall  be  tilled  by  the  residue  of  the  directors. 

Sec.  796.  Board  ot  commissioners  may  issue  bonds  to  es- 
tablish work  houses.    1866,  c.  35,  s.  11. 

The  board  of  commissioners,  with  the  assent  o  a  ma- 
ioritv  of  the  justices  of  the  peace,  may,  if  deemed  aavis 
ilie  by  them  issue  county  bonds  to  raise  money  to  estab- 
fisli  the  houses  and  farms  herein  provided  for. 

Sec  797.  Whenever  a  work  house  is  established,  the 
Chairman  of  the  board  of  commissioners  to  certify  fact 
to  governor.     1866,  c.  35,  s.  Iw. 

Whenever  any  workhouse  or  house  of  correction  shall 
be  estSshed  in  pursuance  of  this  ^-^fer,  it  shall  be 
+1,0  rintv  nf  the  chairman  of  the  board  ot  comm  ssioneis 
S  thfLunty  wSn  the  same  shall  be  established  to 
certify  the  fict  to  the  governor,  who  shaU  cause  it  to  be 
noted  in  a  book  kept  for  that  purpose. 

Sec.  798.  Suit  to  be  brought  in  name  of  board  of  county 
commissioners.    1866,  c.  35,  s.  13. 

All  suits  brought  on  behalf  of  the  institution  shall,  un^ 
lest  it  be  otherwise  prescribed,  be  brought  m  the  name  of 
theboanl  of  commissioners  of  the  county  to  the  use  of 
the  cStors  of  the  work  house,  without  designating 
such  directors  by  name. 

Sec   799    Any  two  or  more  counties  may  jointly  establish 
workhouses.     1866-'7,  c.  130,  s.  1. 

Any  two  or  more  counties,  acting  through  their  re^Bpec- 
tive  boards  of  commissioners,  may  ]omtly  establish  one 


14 


314  COUET  HOUSES,  ETC.  [Chap.  20. 

or  more  convenient  houses  of  coriection,  as  is  provided 
in  the  preceding  sections,  for  the  joint  use  of  the  counties 
so  agreeing  together;  and  the  same  may  be  established 
at  such  place  or  places,  and  be  in  all  respects  managed 
under  such  by-lav\'s.  rules  and  regulations  as  a  majority 
of  the  general  board  of  directors,  to  be  appointed  as  here- 
inafter directed,  shall  determine. 

Sec.  800.  A  general  board  of  directors  appointed.    1866- 
'7,  c.  130,  s,  2. 

The  hoard  of  commissioners  of  each  of  the  respective 
counties  agreeing  as  aforesaid  to  the  establishment  of  one 
or  more  houses  of  correction  for  use  jointly  with  any 
other  county  or  counties  shall  annually  appoint  five 
directors  in  behalf  of  their  several  counties,  and  the 
directors  so  appointed  by  each  of  such  counties  shall 
together  constitute  the  general  board  of  directors  of  any 
such  joint  establishment. 

Sec.  801.  General    managers    to    be    appointed    by  the 
general  board  of  directors.     1866-'7,  c.  130,  s.  3. 

Said  general  board  of  directors  shall  appoint  a  manager 
or  superintendent  for  every  such  joint  establishment, 
and  such  assistants  and  servants  as  they  inay  deem 
necessary.  The  manager  shall  give  bond  with  two  or 
more  able  sureties,  to  be  approved  by  said  board,  in  such 
sum  as  may  be  required,  payable  to  the  state  of  North 
Carolina,  and  conditioned  for  the  faithful  performance 
of  liis  duties.  He  shall  hold  his  office  during  the  pleasure 
of  the  general  board  of  directors,  and  be,  at  all  times, 
under  their  supervision;  and  of  his  misconduct  they  shall 
be  the  sole  judges,  and  they  may  at  any  time  remove 
him.  He  shall  perform  all  such  duties  as  may  be  pre- 
scribed by  such  general  board  of  directors,  and  all  such 
as  may  be  incident  to  the  office  of  manager  by  virtue 
of  this  chapter.  The  compensation  of  the  manager  and 
such  subordinate  officers,  assistants  and  servants,  as  may 
be  appointed  by  the  general  board,  shall  be  fixed  by  said 
general  board. 


Chap.  21.]  COURTS,  INFERIOR.  315 

CHAPTER  TWENTY  ONE. 

COURTS,  INFERIOR. 

Sfxtion.  I  Section.  ,.        ^  , 

803.  Inferior  courts.  I  809.  Piacticc,  pleading.  &c. ;  appeals 

803.  May  decline  to  elect  justices  of  |  810.  Issues  of  fact 


the  inferior  court. 

804.  Terms,  liow  often  held  in  each 

year. 

805.  If  the  business  cannot  be  deter- 

mined in  one  day,  courts  to 
adjourn  from  day  to  day. 

806.  Majority  of  the  court  failing  to 

meet,  sheriff  to  adjourn  from 
day  to  day. 

807.  Process  continued. 

808.  Jurisdiction. 


811.  Jurors  provided  in  same  man 
ncr  as  for  superior  courts. 

813.  Justices  may  elect  a  clerk. 
Board  of  commissioners  to 
take  bond. 

813.  Notices,   summons,    executions 

and  other  process. 

814.  Justices  shall  elect  an  attorney. 

815.  Presiding  justice;  compensation 

816.  Vacancies,  how  filled. 

817.  May  enforce  its  orders,  &c. 


Sec.  803.  Inferior  courts.    1876-'7,  c.  154,  s.  1. 

Courts  of  recotd  inferior  to  the  supreme  court  are 
established  for  the  trial  of  criminal  actions,  and  such 
courts  shall  have  all  the  rights  and  powers  incident  to 
courts  of  record,  and  shall  have  such  jurisdiction  as  shall 
be  conferred  and  prescribed  by  law.  The  courts  herein 
provided  for  shall  be  held  by  three  persons,  to  be  chosen 
by  the  iustices  of  the  peace,  or  a  majority  ot  them,  trom 
the  body  of  the  county,  the  justices  included;  such  per- 
sons shall  be  of  good  moral  character,  of  fair  ability,  and 
men  of  integrity,  and  when  so  elected  shal  be  the  jus- 
tices of  said  inferior  court.  They  shall  hold  their  offices 
for  two  years,  and  until  their  successors  are  elected  and 
qualified. 

Sec.  803."  May  decline  to  elect  justices  of  the  inferior 
court.     1876-'7,  c.  154,  s.  3. 

If  in  the  opinion  of  the  justices  of  the  peace  of  any 
county,  or  a  majority  of  them,  it  will  not  promote  the 
best  interests  of  the  people  for  such  courts  to  be  held  in 
such  county,  it  shall  be  lawful  for  the  said  .iustices  ot 
the  peace,  or  a  majority  of  tbem,  to  dechne  to  elect  the 
justices  of  such  inferior  courts,  and  in  that  event  there 
shall  be  no  infeiior  court  held  in  such  county;  but  it,  in 
the  opinion  of  the  justices  of  the  peace,  or  a  inajority  ot 
them,  the  general  good  of  the  comity  would  be  pro- 


816  COURTS,  INFERIOR.  [Chap.  21. 

moted,  then,  and  in  that  event,  the  said  justices  of  the 
peace,  or  a  majoritj^  of  them,  shall  provide  that  said  infe- 
rior courts  shall  be  held  for  the  trial  of  criminal  actions 
only;  and  in  such  case  such  inferior  courts  shall  exercise 
only  the  criminal  jurisdiction  hereinafter  conferred. 

Sec.  804.  Terms,  how  often  held  in  each  year,  1876-'7, 
c.  154,  s.  3. 

Said  courts  shall  be  held  for  their  respective  counties 
four  times  in  each  year,  unless  otherwise  determined,  on 
such  days  as  may  be  determined  on  and  fixed  by  a  major- 
ity of  the  justices  of  the  pear-e;  but  no  term  of  said 
courts  shall  be  held  within  less  than  three  months,  from 
and  after  the  fii'st  day  of  the  preceding  term;  and  when- 
ever the  justices  of  the  peace  of  any  county  shall  have 
elected  the  justices  of  the  said  inferior  court,  the  said  in- 
ferior court  shall  continue  to  bs  held;  but  if  after  three 
months'  notice  to  that  effect,  to  be  posted  at  the  court 
honse  door  and  at  one  or  more  public  places  in  each 
tov/nship  in  the  county,  the  justices  of  the  peace  of  any 
county,  shall  determine  to  discontinue  the  holding  of  said 
courts;  then  the  said  couils  shall  be  discontinued,  and 
the  records,  books  and  papers  of  said  courts  shall  be  filed 
in  the  office  of  the  clerk  of  the  superior  court  of  said 
county,  and  all  causes  and  matters  and  things  then  pend- 
ing shall  be  thereby  transferred  to  the  said  superior 
courts,  to  be  therein  proceeded  in  and  tried  as  if  the  same 
had  been  therein  docketed  upon  appeals  from  courts  of 
justices  of  the  peace:  Provided,  that  no  case  herem  trans- 
ferred shall  be  dismissed  for  want  of  jmisdiction  in  jus- 
tices of  the  peace. 

Sec.  805.  If  the  husiiiess  cannot  be  determined  in  one  day, 
court  to  adjourn  from  day  to  day.  1870-'7,  c.  154, 
s.  4.     1881,  c.  332. 

If  the  business  of  the  said  courts  cannot  be  determined 
on  the  first  day  of  the  term,  the  courts  may  adjourn  from 
day  to  day  not  exceeding  six  days,  except  in  the  counties 
of  Wake,  New  Hanover,  Granville  and  Mecklenbuig.  in 
which  the  courts  maybe  held  for  two  weeks,  at  the  end 
of  which  time  the  causes  and  matters  which  may  be  pend- 
ing, and  not  finally  determined,  shall  be  continued  to  the 
next  succeeding  term. 

Sec.  806.  Majority  of  the  court  failing  to  meet,  shcritfto 
adjourn  IVom  day  to  day.     187C-'7,  c.  154,  s.  5. 

If,   for  any  cause,   a  majoiity   of  any  court  shall  not 


Chap.  21.]  COURTS,  INFERIOR.  317 

meet  for  holding  the  term  on  a  day  appointed,  any  one 
of  the  court,  and,  in  the  absence  of  all  the  members  of 
the  court,  then  the  sheriff  may  adjourn  the  court  from 
day  to  day  not  exceeding  three  days,  until  a  sutfacient 
number  of  the  justices  of  the  court  can  attend. 

Sec.  807.  Process  continued.    1876-'7,  c.  154,  s.  6. 

No  inferior  Cf.urt,  nor  any  process  there  jDendrng,  shall 
be  discontinued  by  reason  of  its  justices  failing  to  hold 
court  upon  the  day  appointed,  or  by  any  alteration  ot  the 
day  appointed  for  holding  it;  but  in  every  such  case,  aU 
process,  matters  and  things  pending  shall  stand  con- 
tinued;'and  all  appearances,  upon  returns  of  process,  shall 
be  made  to  the  next  succeeding  term,  m  the  same  man- 
ner as  if  such  succeeding  term  had  been  the  term  to 
which  said  process  had  been  continued,  or  such  returns 
or  appearance  had  been  made;  and  all  recognizances, 
bonds  and  obligations  for  appearances,  and  all  returns, 
shall  be  of  the  same  force  and  validity  for  the  appearance 
of  any  person  at  such  succeeding  term,  and  aU  subpoenas 
for  witnesses  as  effectual  as  if  the  next  succeeding  term 
had  been  expressly  mentioned  therein. 

Sec.  808.  Jurisdiction.    1876-'7,  c.   154,  s.   7.    1879,  c. 
92,  s.  11.    1881,  c.  210. 

Said  inferior  courts  shall  have  jurisdiction  to  inquire 
of  try  hear  and  determine  all  crimes  and  misdemeanors, 
except'  those  whereof  exclusive  original  jurisdiction  is 
given  to  courts  of  justices  of  the  peace,  and  except  the 
crimes  of  murder,  manslaughter,  arson,  rape,  assault 
with  intent  to  commit  rape,  burglary,  horse-stealing, 
libel,  perjury,  forgery  and  highway  robbery.  Said  inte- 
rior courts  shall  also  have  jurisdiction  of  all  such  affrays 
as  shall  be  committed  within  one  mile  of  the  place  where 
and  during  the  time  such  courts  are  bemg  held,  and  ot 
all  offences  whereof  exclusive  original  jurisdiction  is  given 
to  justices  of  the  peace,  if  some  justice  of  the  peace  shall 
not,  within  six  months  after  the  commission  ot  the  ot- 
fence,  proceed  to  take  official  cognizance  thereof. 

stale  V  Lane,  78— 547;  State  v.  Spurtin,  80—363;  Slate  v.  Williamson. 
81-540-  Slate  v.  Moore,  82-659;  Slate  v.  Bentliall,  83-664;  Sthtc  v.  Ham, 
83-590;  State  v.  Tiiompson,  83-595;  State  v.  Taylor,  83-601 ;  State  v. 
Berry,  83—603;  Slate  v.  Taylor,  8^^-743;  State  v.  Reaves,  85—553. 

Sec.  80;>.  Practice,  pleading,  &c.;   appeals.     1876-'7,   c. 
154,  i-,.  9.     1879,  c.  141.    Const.,  Art.  IV.,  s.  8. 

The   practice,  pleading,  process  and  procedure  in  such 


318  COURTS,  INFERIOR.  [Chap.  21. 

courts  shall  be,  in  all  respects,  as  provided  for  the  superi- 
or courts.  Appeals  may  be  taken  from  these  courts  to 
the  superior  courts  in  term  time  for  error  assigned  in 
matters  of  law  in  the  same  manner  and  under  the  same 
restrictions  provided  by  law  for  appeals  from  the  superior 
courts  to  the  supreme  court,  and  the  final  decision  of  each 
superior  court  shall  he  certified  to  the  court  below,  that 
final  judgment  may  be  rendered. 

State  V.Lane.  78—547;  State  v.  Spurtin,  80— 363;  State  v.  Lawrence,  81 
—532;  Stale  V.  Ham,  83—590;  State  v.  Tliompson,  83—595;  State  v.  Pol- 
lard. 83—597;  State  v.  Moore,  84—724;  State  v.  McDowell,  84—798. 

Sec,  810.  Issues  of  fact.    1876-'7,  c.  154,  s.  11. 

In  all  issues  of  fact,  founded  upon  trials  of  petit  misde- 
meanors, the  parties  may,  by  a  written  stipulation  filed 
in  the  cause,  waive  their  right  to  have  the  same  deter- 
mined by  a  jury,  and  submit  it  to  a  decision  of  the  jus- 
tices of  said  inferior  courts,  and  the  finding  of  said 
justices,  or  a  majority  of  them,  upon  the  facts,  shall  have 
the  force  and  effect  of  a  verdict  of  a  jury. 

Sec.  811.  Jurors  provided  in  same  uianner  as  for  supe- 
rior court.    187G-'7,  c.  154,  s.  12. 

Thiriij^  jurors  shall  be  provided  for  each  term  of  said 
courts  in  the  same  manner  that  jui'ors  are  provided  for 
the  superior  coui'ts,  of  which  jurors,  fifteen,  drawn  and 
sworn  iu  the  same  manner  that  grand  jurors  are  drawn 
and  sworn  in  the  superior  courts,  shall  constitute  the 
grand  jury,  with  the  same  powers  and  duties  of*  grand 
juries  in  the  superior  courts;  the  other  fifteen  shall  be 
petit  jurors  for  the  trial  of  causes,  and  when  the  regular 
l^annel  shall  be  exhausted,  talesmen  may  be  summoned 
and  sworn  under  the  same  rules  as  govern  such  cases  in 
the  superior  courts. 

Sec.  812.  Justices  may  elect  a  clerk,  board  of  commis- 
sioners to  take  bond.    187G-'7,  c.  154,  s.  13.     1883, 
c.  289,  s.  2. 
In  each  county  in  which  the  said  courts  shall  be  held, 
a  majority  of  the  justices  of  the  peace  may  elect  a  clerk  of 
said  inferior  court,  who  shall  enter  into  a  good  and  suffi- 
cient bond  in  a  sum  not  less  than  five  thousand  dollars, 
with  sureties  thereto,  to  be  accepted  and  approved  by 
the  board  of  commissioners  of  the  county  as  is  author- 
ized and  i-equired  in  other  cases  of  county  officers  giving 
bonds,  for  the  discharge  of  all  the  duties  of  liis  office, 
who  shall  keep   the  records  of    his  court    in    suitable 


Chap.  21.]  COUETS,  INFEKIOR.  319 

manner,  in  books  to  be  furnished  by  the  board  of  county 
commiskoners,   and  shall    receive    the    same    fees    foi 
seXs  by  him  rendered  as  are  provided  for  clerks  of 
the  superior  courts  for  similar  services,   and  shall  hold 
his  office  for  two  years,  and  until  his  successor  is  chosen 
and  qualified,  and  shall  be  subject  to  the  same  laws  and 
fSu?ations  as  are  provided  for  the  quahflcations,  duties 
rSpSilitiesandhabihtiesof  clerks  of  the  supenov 
courts:  Provided,  that  if  the  justices  of  the  peace  of  any 
county,  or  a  majority  of  them,  shall  fail  or  dechne  to 
e?ect  a  clerk,  as  herein  provided,  then  and  m  that  event 
the  clei5.  of 'the  superior  court  shall  be.:,  officio  c  ei-k  of 
said  inferior  court,  and   shall  give  hke   bond    and   be 
subject  to  the  same  duties  and  be  liable  in   the  same 
manner  and  to  the  same  extent  as  if  he  had  been  elected 
by  the  justices  of  the  peace. 

Davis  V.  Moss,  80—141. 

Sec.  813.  Notices,  summons,  executions  and  other   pro- 
cess.   1876-'7,  c.  154,  s.  14.         ^      .^  .    ^     .  , 

It  shall  be  the  duty  of  the  clerks  of  said  inferior  courts 
to  issue  all  notices,  summons,  executions  and  other  pro- 
cess that  may  be  required  by  said  courts;  and  it  shall  be 
Se  duty  of  the  sheriff,  deputy  sheriffs  or  coroner,  as  the 
case  ma^y  be,  to  execute  the  same,  and  make  due  returns 
thereon,  as  Aow  required  in  the  superior  courts,  and  they 
shSl  be  entitled  to  like  fees,  and  liable  to  the  same  fines 
and  penalties  as  in  the  superior  courts. 
Sec.  814.  Justices  shall  elect  an  attorney.    1876-'7,  c. 

The  iJsticts  of  the  peace  of  such  county,  a  majority 
being  present,  shall  elect  an  attorney,  properly  qualified 
to  a"t  for  and  in  behalf  of  the  state  m  the  county,  who 
shall  hold  his  office  for  the  term  of  two  years,  and  until 
his  successor  is  chosen  and  qualified,  and  sha  1  Pjosecute 
all  matters  cognizable  in  such  court  in  behalf  of  the 
state,  and  he  shall  receive  the  same  fees  on  conviction 
as  are  aUowed  solicitors  in  the  superior  courts. 

Sec.  815.  Presiding  justice;  compensation.    1876-'7,  c. 
154,  s.  16.  ,  . , 

The  court  shall  elect  one  of  their  own  number  presid- 
ing justice,  who  shall  hold  his  office  until  his  successor 
is  appointed.  The  compensation  of  each  member  ot  the 
court  shall  be  fixed  by  a  majority  of  the  l^sjices  of  the 
peace  of  the  county,  not  to  exceed  the  sum  of  thiee  doi- 


320 


COURTS-JUSTICES. 


[Chap.  22. 


lars  per  day  each:  Provided,  in  counties  where  the  busi- 
ness of  the  court  would  be  thereby  facihtated,  a  majority 
of  the  justices  of  the  peace  may  allow  the  presiding  jus- 
tice such  compensation  as  they  may  deem  proper  and 
necessary. 

Seo.  816.  Vacancies,  how  filled.    1876-'7,  c.  154,  s.  17. 

The  justices  of  the  peace  of  any  county,  or  a  majority 
of  them,  shall  fill  all  vacancies  occurring  in  any  of  the 
offices  herein  provided. 

Sec.  817.  May  enforce  its  orders,  &c.    1876-'7,  c.  154 

s.  18. 

The  said  courts  shall  have  the  same  power  and  author- 
ity to  enforce  their  orders,  judgments  and  decrees,  and 
the  general  conduct  of  their  business  and  punish  con- 
tempts as  are  conferred  upon  the  superior  courts.  Each 
court  shall  have  a  seal  with  the  proper  device,  and 

stamped  with  the  words,  "inferior  court, county, 

....... . ,"  and  the  clerk  of  the  court  shall  affix  the  same 

to  his  official  acts  and  signatures  when  necessary. 


CHAPTER  TWENTY-TWO. 
OOUKTS-JUSTIOES  OF  THE  PEACE. 


Sbction. 

818.  Pi'ovisions  of  article  seven  of 

tlie  constitution  abrogated ;  ex- 
ceptions. 

819.  Justices  of  the  peace  to  be  elect- 

ed by  the  general  assembly; 
additional  justices  for  cities 
and  towns;  secretary  of  state 
to  give  certificate;  governor 
to  appoint. 

820.  Two  additional  justices  in  eaoli 

townsliip;  terras  of  office. 
831.  Within  what  time  to  qualify. 
Hill.  Removal  out   of  townsliip   six 

months,  to  forfeit  office. 
833.  Rcsigniition. 
824.    May    issue     process  and      try 

causes,  where. 


Section. 

825  Office   under  the   United  Staten. 
826.  Punishment  on    con  viol  ion   of 
infamous  crimes,  &c. 

837.  Filing  docljets  wiili  clerlis. 

838.  Delivery  of  unfilled  dockets  to 

successor. 

839.  Filing  and    delivery,   how   en- 

forced. 

830.  Summons. 

831.  A  civil  and  a  criminal  docket  to 

be  furnished  each  justice. 
833    Summons,  by  whom  issued. 

833.  Service  and  return  of  summons, 

834.  Jurisdiction. 

835.  Justices  to  dismiss  action  when 

the  principal   .sum   <lemanded 
exceeds  two  hundred  dollars. 


Chap.  22.] 


COURTS-JUSTICES. 


321 


Section. 

836.  Answer  where  title  to  real  es- 

tate is  brought  in  issue. 

837.  Aciion  to  be  dismissed,  when. 

838.  Another  action  may  be  brought 

839.  Docketing  justice's  judgment. 

840.  Rules  of  proceeding  in  justice's 

court 

841.  Execution,  on   what  and  from 

what  time,  alien. 
843.  Stay  of  execution;  stay  granted 
by  justice. 

843.  Surety  on  stay  of  execution. 

844.  Former  judgment. 

845.  Application  for  rehearing. 

846.  Justice's  judgment  removed  to 

another  county,  how. 

847.  Witnesses,  penalties,  &c. 

848.  Penalty  for  swearing  before  a 

justice,  &c. 

849.  Code    of    Civil  Procedure  ap- 

plicable. 

850.  AiTest,  in  what  cases. 

851.  Order  of  arrest,  by  whom  made. 

853.  Affidavit  to  obtain  order. 
833.  Code    of   Civil  Procedure    ap 

plicable. 

854.  Jury  list  furnished  to  each  jus 

tice. 

855.  Justice  to  keep  jury  box. 

856.  Names  of  jurors  to  be  deposited 

in  jury  box 

857.  When  trial  by  jury  demanded 

or  waived. 

858.  Jury  drawn  and  trial  postponed 

859.  Summoning  of  the  jury. 

860.  The  jury  for  the  trial  of  the 

cause 

861.  Challenge. 


Section. 

Jurors  serving  on  trial. 
Deposit  of  jury  fees. 

870.  Adjournment  after  return  of 
the  jury. 

871.  No  process  issued  by  justice 
outside  his  own  county,  &c. 

873.  Process  issued  from  a  justice  of 
the  peace  in  one  couuty  on  a 
party  in  anothi  r  county  ren- 
dered  valid  by  endorsement 
of  justice  in  defendant's 
county. 

873.  Certificate  of  the  clerk  of  su- 
perior court;  entry  of  date. 

874.  No  process  served  under  ten 
days'  notice. 

875.  Appeal;  execution. 

876.  Appeal,  when  to  be  taken. 

877.  When  appellant  not  to  give 
written  notice. 

878.  Justice  to  make  return  of  the 
appeal  to  the  clerk  of  appellate 
court  within  ten  days. 

879.  If  return  defective  it  may  be 
amended. 

880.  Clerk  of  superior  court  to 
docket  appeal. 

The  appeal  to  be  heard  on  the 

original  papers. 
Execution  of    judgment,    how 

stayed. 
Appellant  may  give  undertak- 


1  884.  Same,  undertaking  to  be  given. 
5.  Same,  delivery  and  service  of 
order  on  whom. 
Restitution. 


•  cnaiienoe.  jurisdiction,     where    property 

!.  What  names  to  be  returned  to  PO'-  -> 


the  jury  box,  or  destroyed. 

863.  Tales  jurors  may  be  summoned 

864.  Jury    sworn    and    impaneled 

verdict. 

865.  New  trial;  appeal. 

866.  Less  than  six  may  be  a  jury, 

when 

867.  Not  compelled  to  serve  out  of 

township. 


does  not  exceed  fifty  dollars. 
!.  Recovery    of    damages  to    real 
estate. 

889.  Claim  and  delivery  of  personal 
property. 

890.  When  a  deliveiy  is  claimed. 

891.  Sufficiency  of  surety. 

893.  Criminal  jurisdiction  of  justices 
of  the  peace. 


322 


CO  UKTS— JUSTICES. 


[Chap.  22. 


Section. 

893.  Aili'.ition.il    jiirisc'.iclioii,   peace 

■Wiinants,  baslaiily,  Ac. 

894.  Proceedings  on  jicace  warrant. 

895.  Parly  convictetl  lo  pay  costs;  if 

accused  acf|uiltcd,  complain- 
ant  to  pay  costs. 

896.  AVlien  jusncc  has  not  final  juris- 

diction, must  commit  accused 
to  prison,  or  require  recogniz- 
ance for  his  iippearance  to  the 
next  term  of  the  court  having 
jurisdiction. 

897.  When  justice  is  satisfied  that  lie 

has  jurisdiction,  he  shall  pro- 
ceed lo  determine  the  case. 

898.  Jury  to  be  allowed  if  asked  for. 

899.  What  to  he  submitted    to  the 

jury. 

900.  Accused  may    appeal;  trial  de 

novo  in  superior  court. 

901.  Justice  lo   transmit  papers   to 

clerk  of  appelhile  court;  what 
his  return  to  set  forth. 


Section. 

903.  Either  party  paying  fees,  en- 
titled to  copy  of  complaint  and 
other  papers. 

903.  Finding  and  sentence  pleaded 

in  bar  of  indictment. 

904.  Justice  to  imprison  the  guilty 

part}',  if  fine  and  cost  not  paid. 

905.  Imprisoned  party  to  pay  costs 

before  discharged. 

906.  Justices  of  the  peace  to  make 

returns  of  all  criminal  actions 
disposed  of  by  them  to  the 
clerk  of  the  superior,  criminal 
or  inferior  court. 

907.  Actions    removable    from    one 

justice  of  the  peace  to  another 
upon  afBdavit;  proviso. 

908.  Process,  &c.,  not  to  be  quashed 

for  want  of  form. 

909.  Forms  to  he  used  in  justice's 

court. 


Sec.  818.  Provisions  of  article  seven  of  the  constitution 
abrogated;  exceptions.     1870-'7,  c.  141,  s.  7. 

_  All  the  provisions  of  article  seven  of  the  constitution 
inconsistent  with  tiiis  chapter,  except  those  contained  in 
sections  seven,  nine  and  thirteen,  are  hereby  abroi^ated 
and  the  provisions  of  this  chapter  substituted  in  their 
place;  subject,  Jiowever,  to  the  power  of  the  general  as- 
sembly to  alter,  amend  or  abrogate  the  provisions  of  this 
chapter,  and  to  substitute  others  in  their  stead,  as  pro- 
vided m  section  fourteen  of  article  seven  of  the  constitu- 
tion. 

Sec.  819.  Ju.stices  of  the  peace  to  be  elected  by  the  gen- 
eral assembly;  additional  justices  for  cities  and  towns; 
secretary  of  state  to  give  certificate;  governor  to  ap- 
point.    1870-'7,  c.   141,  s.  4. 

Justices  of  the  peace  shall  be  elected  by  the  general  as- 
sembly. At  each  regular  biennial  session,  one  justice  of 
the  peace  shall  be  elected  for  each  township  in  the  several 
counties  of  the  state,  and  shall  hold  his  office  for  the 
term  of  six  years.  In  addition  to  the  justices  of  the 
peace  above  provided  for,  and  when  the  teims  of  those 
now  m  office  shall  expire,  there  shall  be  elected  bv  the 


Chap.  2-2.]  COURTS-JUSTICES.  323 

general  assembly,  for  each  township,  in  winch  any  ^^^^^ 
or  incorporated  town  is  situated,  one  ]ust  ce  of  the  peace, 
^nd  also  one  for  every  one  thousand  inhabitants  m  such 
cS.y  or  town,  who  shall  hold  his  office  for  the  term  of  six 
years  The  term  of  office  of  a  justice  of  the  peace  fh^J 
Kginonthe  first  Thursday  in  \^§^^st^\^^itfpd  shall 
election;  and  those  heretofore,  or  hereafter  elected,  shall 
remain  n  office  until  their  respective  terms  expire.  The 
seSe  at y  of  state  shall  certify  to  the  clerks  of  the  supenor 
S  ot^the  several  counties,  a  hst  f.f^lf\^^^^l^ll 
neace  elected  for  their  several  counties,  and  this  shall  oe 
theh  conSSsion,  and  the  clerk  of  the  supenor  court 
shSl  not  ?y  said   ustices  of  their  election.     When  new 

own  hips^shall  be  established,  if  the  g^^.f  ^^  '^^^^J^^l^ 
shall  not  be  in  session,  the  governor  ^^^1  ffil  thdr 
iustices  of  the  peace  therein,  and  they  shall  hold  their 
Ee  until  the  next  meeting  of  the  general  assembly, 

and  until  their  successors  shaU  be  elected  and  qualified. 

Sec.  830.  Two  additional  justices  in  each  townsliip;  terms 
ofofflcc.    1883,  c.  135,  ss.  1,3.  „     ,    „    i     4. 

The  general  assembly,  at  the  session  of  1883,  shall  elect 
two  iustices  of  the  peace  for  the  several  townships  of  the 
srateraddition  to  those  provided  for  by  the  preceding 
section'  one  half  of  whom  shall  be  elected  for  the  term  of 
foui  years  and  the  other  lialf  for  the  term  of  six  years, 
and  their  successors  thereafter  for  the  term  of  six  years. 

Sec   831.  Witliin  wbat  time  to  qualify.    C.  C.  P.,  s.  546. 

Every  person  elected  or  appointed  a  justice  of  the 
peace,  shclu,  within  thirty  days  after  his  term  of  office  be- 
gins, take  and  subscribe  the  prescribed  oath  of  office  be- 
fore the  clerk  of  the  superior  court;  which  oath  shall  be 
fiTed  by  the  clerk  of  siid  court.  And  any  person  pre- 
suming to  execute  the  office  of  a  justice  of  the  Peace 
without  qualifying  as  herein  directed,  shaH  be  guilty  of  a 
misdemeanor. 

State  V.  Canslcr.  75—443. 

Sec.  823.  Removal  out  of  township  six  montlisto  forfeit 
office.    C.  C.P.,  S.547.  .    .,  •    . 

When  any  justice  of  the  peace  removes  out  of  his  town- 
ship and  does  not  return  therein  for  the  space  of  six 
rnonths,  he  shall  forfeit  and  lose  his  office;  and  any  such 
justice  of  the  peace  presuming  to  act  thereafter  con  ary 
to  this  section,  unless  re-elected  or  re-appointed,  shaU  be 
guilty  of  a  misdemeanor. 


324  COURTS-JUSTICES.  [Chap.  22. 

Sec.  823,  Resignation.    C.  C.  P.,  s.  548. 

Justices  of  the  peace  wishing  to  resign,  nmst  deliver 
tJieir  letters  of  i-esignatiou  to  the  clerk 'of  the  superior 
court,  who  shall  file  the  same. 

Sec.  824.  May  issue  process  and  try  causes,  where.    C.  C 
P.,  s.  549. 

A  justice  of  the  peace  may  issue  a  summons  or  other 
process  anywhere  in  his  county,  but  he  shaE  not  be  com- 
pelled to  try  a  cause  out  of  the  township  for  which  he 
was  elected  or  appointed. 

Sec.  825.  Office  under  the  United  States.    C.  C.  P.,  s.  550. 

Any  justice  of  the  peace  may  accept  a  civil  office  or 
appomtment  of  trust  or  profit,  under  the  authority  of  the 
United  States,  the  duties  of  which  confine  him  to  the 
county  where  he  is  resident. 

Sec.  826.  Punishment  on  conviction  of  infomous  crimes 
&c.    C.  C.  P.,  s.  551.  ' 

Upon  the  conviction  of  any  justice  of  the  peace,  of  an 
infamous  crime  or  of  corruption  and  malpractice  in  office 
he  shall  be  removed  from  office,  and  he  shall  be  disquali- 
fied from  holding  or  enjoying  any  office  of  honor,  trust  or 
profit  under  this  state. 

State  V.  Zacbary,   Busb.,   433;    State  v.  Hawkins,    77— 494-    State  v 

Sneed,  84— 81G. 

Sec.  827.  Filing-  dockets  with  clerks.    C.  C.  P.,  s.  552. 

Each  justice  of  the  peace,  as  often  as  he  has  filled  his 
docket,  shall  file  the  same  with  the  clerk  of  the  superior 
court  for  his  county. 

Sec.  828.  Delivery  of  unfilled  docket  to  successor.    C.  C 
P.,  s.  553. 

When  a  vacancy  exists,  from  any  cause,  in  the  office 
of  a  justice  of  the  peace,  whose  docket  is  not  filled,  or 
when  such  justice  goes  out  of  office  by  expiration  of  his 
term,  such  former  justice,  if  living,  and  his  personal  rep- 
resentative, if  dead,  shall  deliver  such  docket,  and  all  offi- 
cial papers  to  his  successoi-,  who  is  authorized  to  hear 
and  determine  any  unfinished  action  on  said  docket,  in 
the  same  manner  as  if  such  action  had  been  originally 
brought  before  such  successor. 


Chap.  22.]  COURTS- JUSTICES.  32S 

Sec.  839.  Filing  and  delivery,  how  enforced.    C.  C.  P.,  s. 
554.  , 

The  duty  imposed  on  the  justice,  or  his  personal  rep- 
resentative, by  the  two  preceding  sections  may  be  en- 
forced, on  ten  days'  notice  in  writing  to  such  justice  or 
his  representative,  by  attachment. 

Sec.  830.  Summons.    C.  C.  P.,  s.  495.     1868-'9,  c.  159, 
s.  9. 

Civil  actions  in  these  courts  shall  be  commenced  by  the 
issuing  of  a  summons. 

Kirklanil  v.  Hogan,  65—144. 

Sec.  831.  A  civil  and  a  criminal  docket  to  be  furnisbed 
eacU  justice.  .  ,     ^        i 

A  civil  and  a  ci-iminal  docket  shall  be  furnished  each 
iustice,  at  the  expense  of  the  county,  by  the  board  ot 
county  commissioners,  in  which  shall  be  entered  a  min- 
ute of  every  proceeding  had  in  any  action  betore  such 
justice. 

Sec.  832.  Summons,  by  whom  issued.    C.  C.  P.,  s.  496. 
1874-'5,  c.  234.  .     ■        j 

The  summons  shaU  be  issued  by  the  justice  and  signed 
bvhim  It  shall  run  in  the  name  of  the  state,  and  be  di- 
rected to  any  constable  or  other  lawful  officer,  command- 
ins  him  to  summon  the  defendant  to  appear  and  answer 
thi  complaint  of  the  plaintiff  at  a  place  within  the 
county,  to  be  therein  specified,  and  at  a  time  to  be  therein 
named,  not  exceeding  thirty  days  from  the  date  of  the 
summons.  It  shall  also  contain  the  amount  of  the  sum 
demanded  by  the  plaintiff. 

Allen  V.  Jackson,  86—331. 

Sec.  833.  Service  and  return  of  summons.    C.  C.  P.,  s. 
497. 

The  officer  to  whom  the  summons  is  delivered  shall 
execute  the  same  within  five  days  after  its  receipt 
by  him,  or  immediately,  if  required  to  do  so  by  the 
plaintiff.  Before  proceeding  to  execute  it,  he  is  entitled 
to  require  of  the  plaintiff  his  fees  for  the  service.  When 
executed  he  shall  immediately  return  the  summons,  with 
the  date  and  manner  of  the  service,  to  the  justice  who 
issued  the  same. 


326  COURTS— JUSTICES.  [Chap.  22. 

Sec.  834.  Jurisdiction.  C.  C.  P.,  s.  498.    1868-'9,  c.  159, 

s.  3. 

Justices  of  the  peace  shall  have  exclusive  original  juris- 
diction of  aU  civil  actions  founded  on  contract,  except : 

(1)  Wherein  the  sum  demanded,  exclusive  of  interest, 
exceeds  two  hundred  doUars. 

(2)  Wherem  the  title  to  real  estate  is  in  controversy. 

WilmiDgton  v.  Davis,  63—582  ;  Hcdsccock  v.  Davis,  61—650;  E<lentOD 
V.  Wool,  65—379  ;  Stendman  v.  Jones,  65—888  ;  Winslow  v.  Weith,  66— 
432;  rroelick  v.  Express  Co.,  67—1;  Rowark  v.  Gaston,  67—291;  State  v. 
Porter,  69—140;  Caldwell  v.  Beatty,  69—365;  Boyle  v.  Bobbins,  71—130 
State  V.  Rosseau,  71—194;  Tcmpletou  v.  Summers,  71— 269;  Latham  v, 
Rollins,  72—454;  Washington  v.  Hammond,  76—33;  London  v.  Headen 
76—72;  State  v.  Rice,  76—194;  Green  v.  R.  R.  Co.,  77—95;  Perry  v.  Shep 
herd,  78—83;  Evans  v.  Williamson,  79—86;  Reeves  v.  Davis,  80—209 
Brunhild  v.  Freeman,  80—212;  McDonald  v.  Cannon.  83—245;  Dalton  v, 
Webster,  82—279;  Davis  v.  Davis,  83— 71 ;  Womble  v.  Leach,  8.J— 84 
Joues  V.  Palmer,  83—303;  Derr  v.  Stubbs,  83—539;  Fislier  v.  Webb, 
84—44  ;  Robinson  v.  Howard,  84—151  ;  Katzenslein  v.  R.  R.  Co.,  84— 
688;  Lowery  v.  Perry,  85—131;  Morris  v.  Saunders,  85—138;  Coggins  v. 
Harrell,  86—317;  Allen  v.  Jackson,  86—321;  McAdoo  v.  Galium,  86— 
419;  Mebane  v.  Layton,  86—571;  Love  v.  Rhyne,  86—577;  Hahn  v.  Lat- 
ham, 87—172;  Lutz  V.  Thompson,  87—334;  Hannah  v.  R.  R.  Co.,  87—351; 
McDonald  v.  Dickson,  87 — 404. 

Sec.  835.  Justices  to  dismiss  action  vrlieu  the  principal 
sum  demanded  exceeds  two  hundred  dollars.  C.  C.  P., 
s.  499.    1868-'9,  c.  159,  s.  3.    1876-'7,  c.  63. 

Where  it  appears,  in  any  action  brought  before  a  jus- 
tice, that  the  piincipal  sum  demanded  exceeds  two  hun- 
dred dollars,  the  justice  shall  dismiss  the  action  and  ren- 
der a  judgtuent  against  the  plaintiff  for  the  costs,  unless 
the  plaintiff  shall  remit  the  excess  of  principal,  above  two 
hundred  dollars,  with  the  interest  on  said  excess,  and 
shall,  at  the  time  of  filing  his  complaint,  direct  the  jus- 
tice to  make  this  entry:  "The  plaintiff,  in  this  action, 
fOTgivesand  remits  to  the  defendant  so  much  of  the  prin- 
cipal of  this  claim  as  is  in  excess  of  two  hundred  dollars, 
together  witli  the  interest  on  said  excess." 

Murphy  v.  McNeil,  82—221;  Derr  v.  Stubbs,  83—539;  Fisher  v.  Webb, 
84—44;  Brickell  v.  Bell,  84—82. 

Sec.  836.  Answer  where  title  to  real  estate  is  brought  in 
issue.    C.  C.  P.,  s.  500i 

In  every  action  bt-ought  in  a  court  of  a  justice  of  the 
peace,  where  the  title  to  real  estate  comes  in  controversy, 
the  defendant  may,  either  with  or  without  other  matter 


I 


Chap.  22.]  COURTS-JUSTICES.  327 

of  defence,  set  forth,  in  his  answer,  any  matter  showing 
that  such  title  will  come  in  question.  Such  answer  shall 
be  in  writing;  signed  by  the  defendant  or  his  attorney, 
and  delivered  to  the  justice. 

Hcyer  V.  Beatty.  7G-28;  Evans  v.  Williamson,  79-86;  Hahn  v.  Latham. 
87—572. 

Sec   837.  Action  to  be  dismissed,  when.    C.  C.  P.,  s.  501. 

If  it  appears  on  the  trial,  that  the  title  to  real  estate  is 
in  controversy,  the  justice  shall  dismiss  the  action  and 
render  judgment  against  the  plaintiff  for  costs. 

Turner  V  Lowe,  06-413;  D.ilin  v.  Howard,  66-433;  Foster  v.  Perry, 
77-160;  Davis  V.  Davis,  83-71;  Nesbit  v.  Turrentine,  83-535;  Parker  v. 
Allen,  81 — 466;  Hahn  v.  Latham,  87—172. 

Sec.  838.  Another  action  may  be  brought.    C.   C.  P.,  s. 

502.  .     ,.       •       J 

When  an  action,  before  a  justice,  is  dismissed  upon 
answer,  and  proof  by  the  defendant,  that  the  title  to 
real  estate  is  in  controversy  in  the  case,  the  plamtitt  may 
prosecute  an  action  for  the  same  cause  in  the  superior 
court,  and  the  defendant  shall  not  be  admitted  in  that 
court,  to  deny  the  jurisdiction  by  an  answer  contradict- 
ing this  answer  in  the  justice's  court. 
Duliu  V.  Howard,  66-433;  Evans  v.  Williamson,  79—86. 

Sec.  839.  Docketing  justice's  judgment.    C.  C.  P.,  s.  503. 
1868-'0,  c.  273,  s.  3. 

A  justice  of  the  peace,  on  the  demand  of  a  party  m 
whose  favor  he  has  rendered  a  judgment  shall  give  a 
transcript  thereof  which  may  be  filed  and  docketed  m 
the  office  of    the   superior  court  clerk  of   the  county 
where  the  judgment  was  rendered.     Or  in  such  case  he 
shall  also  deliver  to  the  defendant,  or  his  attorney,  a 
transcript    of  any   stay  of  execution  issued,   or  which 
may  thereafter  be  issued,   by  him  on  such  judgment, 
which  may  be  in  like  manner  filed  and  docketed  in  the 
office  of  the  clerk  of  said  court.     The  time  of  the  receipt 
of  the  ti-anscript  by  the  clerk  shall  be  noted  thereon  and 
entered  on  the  docket;  and  from  that  time  the  judgment 
shall  be  a  judgment  of  the  superior  court  m  all  respects. 
Tne  execution  thereon  shall  be  issiled  by  the  clerk  of  the 
superior  court   to  the  sheriff  of  the   county,  and  shall 
have  the  same  effect,  and  be  executed  m  the  same  man- 
ner asotherexecutionsof  the  superior  court:  Provided, 
that  in  case  a  stay  of  execution  upon  such  judgment 
shall  be  granted,   as  provided  herein,    executions  upon 


328  COUETS- JUSTICES.  [Chap.  22. 

such  judgment  shall  not  be  issued  by  the  clerk  of  the 
superior  court  until  the  expiration  of  such  stay.  A  cer- 
tified transcript  of  such  judgment  may  be  filed  and 
docketed  in  the  superior  court  clerk's  office  of  any  other 
county,  and  with  the  like  effect,  in  every  respect,  as  in 
tlie  county  where  the  judgment  was  rendered,  except 
that  it  shall  be  a  lien  only  from  the  time  of  filing  and 
docketing  such  transcript. 

McAdoo  V.  Benbow,  63 — 461;  McAden  v.  Banister,  63 — 478;  Norwood 
V.  Thorpe,  64—682;  Bales  v.  Bank,  65—81;  Bates  v.  Hinsdale,  G5 — 423; 
McKeithan  v.  Wallier,  66—95;  Broyles  v.  Young,  81—315;  Morton  v. 
Ripey,  84—611;  Williams  v.  Williams,  85—383;  Surralt  v.  Crawford,  87 
—372. 

Sec.  840.  Rules  of  proceeding  in  justice's  court.  C.  C.  P., 
s.  504. 


The  pleadings  in  these  courts  are — 

(1)  The  complaint  of  the  plaintiff  ; 

(2)  The  answer  of  the  defendant. 

Poston  V.  Rose,  87—279. 


The  pleadings  may  be  either  oral  or  written  ;  if  oral,  the 
substance  must  be  entered  by  the  justice  on  his  docket ; 
if  written,  they  must  be  filed  by  the  justice,  and  a  refer- 
ence to  them  be  made  on  his  docket. 


The  complaint  must  state,  in  a  plain  and  direct  manner, 
the  facts  constituting  the  cause  of  action. 

RULE  IV. 

The  answer  may  contain  a  denial  of  the  complaint,  or 
of  any  part  thereof,  and  also  a  notice,  in  a  plain  and  di- 
rect manner,  of  any  facts  constituting  a  defence  or  coun- 
ter-claim. 

Derr  v.  Stubbs,  83—539;  Fisher  v.  Webb,  84^-44;  Boyett  v.  Vaughnn,  85 
-363;  Barbce  v.  Green,  86— 158;  AVebster  v.  Laws,  86—178;  Meneeley  v. 
Craven,  86—364;  Mcbane  v.  Logan,  80-571;  Love  v.  Rliyne,  86 — 576; 
Poston  V.  Rose,  87—279. 

RULE  V. 

Pleadings  are  not  required  to  be  in  any  particular  form, 


Chap.  22.]  COURTS-JUSTICES.  329 

but  must  be  such  as  to  euable  a  person  of   common  un- 
derstanding to  know  what  is  meant. 

RULE   VI. 

Where  a  defendant  doss  not  appear  and  answer,  the 
pla^itfff  must  sUU  p.ove  his  cas3  before  he  can  recover. 

RULE  vn. 
Tu  an  action  or  defence,  founded  on  an  account  or  an 

cover  or  set  off. 

Evans  v.  Williamson,  79—86. 

BiiLE  vrn. 

A  variance  between  the  evidence  on  the  trial  and  the 
aut-lSin  a  pleading,  shall  be  disregarded  as  imma- 
SSss  the  court  is  satisfied  that  the  adverse  part> 
has  been  misled  to  his  prejudice  thereby. 


RULE  IX. 


The  nleadings  may  be  amended  at  any  time,  before  the 
trial  o?  during  the  trial,  or  upon  appeal,  when  by  such 
amendment  stibstantial  justice  .-1^.  be  Promoted  If  ^he 
amendment  be  made  after  the  ]oimng  of  the  issue,  and 
ftTnpeS-s  to  the  satisfaction  of  the  court,  by  oath,  that 
an  aSrnment  is  necessary  to  the  adverse  Party '^  con^ 
^enuence  of  such  amendment,  an  adjournment  shall  be 
Slnted  The  court  may  also,  in  its  discretion  reqmre 
Is  a  condition  of  an  amendment  the  payment  ot  costs  to 


the  adverse  party 
Hinton  v.  Deans,  75—18, 


RULE  X. 


The  justice  may  at  the  joining  of  i^su^,  requii-e  either 
r..,vt^  nt  the  reauest  of  the  other,  at  that  oi  some 
Sier'specified  time  to  exhibit  his  account  or  demand,  or 
state  the  nature  thereof  as  far  forth  as  may  he  m  his 
uowei  andincase  of  his  default,  the  justice  s^iall  pre^ 
Ke  him  from  giving  evidence  of  such  parts  thereof  as 
have  not  been  so  exhibited  or  stated. 


330  COURTS- JUSTICES.  [Chap.  22. 


EULE  XI. 


Either  party  may  demur  to  a  pleading  of  his  adversary, 
or  to  any  part  thereof,  when  it  is  not  sufficiently  explicit 
to  enable  him  to  understand  it,  or  contains  no  cause  of 
action  or  defence,  although  it  be  taken  as  true. 


If  the  justice  deem  the  objection  well  founded,  he  shall 
order  the  pleading  to  be  amended  on  such  terms  as  he 
may  think  just;  and  if  the  party  refuse  to  amend,  the 
defective  pleading  shall  be  disregarded. 


RtTLE  Xm. 

The  justice  shall  enter  all  his  proceedings  in  a  cause 
tried  before  him  in  his  docket.  No  part  of  such  proceed- 
ings must  be  entered  on  the  summons,  on  the  pleadings 
or  on  any  other  paper  in  the  cause. 

RULE  xrv. 

Execution  may  be  issued  on  a  judgment,  rendered  in  a 
justice's  court,  at  any  time  within  one  year  after  the  ren- 
dition thereof,  and  shall  be  returnable  sixty  days  from 
the  date  of  the  same. 

Williams  v.  Williams,  85—383. 


The  code  of  civil  procedure,  respecting  forms  of  ac- 
tions, parties  to  actions,  the  times  of  commencing  actions, 
and  the  service  of  process,  shall  apply  to  justice's  courts. 

Katzenstein  v.  R.  R.  Co.,  78—286. 

RUI^  XVI. 

The  defendant  may,  on  the  return  of  process  and  be- 
fore answering,  make  an  offer  in  writing  to  allow  judg- 
ment to  be  taken  against  him  for  an  amount,  to  be  stated 
in  such  offer,  with  costs.  The  plaintiff  shall  thereupon, 
and  before  any  other  proceeding  be  had  in  the  action,  de- 
termme  whether  he  will  accept  or  reject  such  offer.  If 
he  accept  the  offer,  and  give  notice  thereof  in  writing, 
the  justice  shall  file  the  offer  and  the  acceptance  tbereoi, 


Chap.  22.]  COURTS-JUSTICES.  331 

and  render  iudgment  accordingly.  If  notice  of  accept- 
ing bfnoVgiven,  and  if  the  plaintiff  fail  to  obtain  judg- 
ment fo  a  |reate'r  amount,  exclusive  of  costs,  than  has 
S>en  specked  in  the  offer,  he  shall  not  recover  costs,  but 
shall  pay  to  the  defendant  his  costs  accruing  subsequent 
to  the  offer. 

Ranclv.  Harris,  83— 486. 

RULE  xvn. 

Any  iustice  before  whom  an  action  is  brought,  may, 
on  sufficient  excuse  therefor  shown  on  the  affidavit  of 
either  party  or  any  person  for  him,  continue  such  action 
from  timeto  time  for  trial;  but  such  continuance  shallnot 
exceed  thirty  days. 

Sec  841.  Execution,  on  wliat  and  from  what  time,  alien. 
C.  C.  P.,  s.  505.    18G8,  c.  159,  s.  5. 

Executions  issued  by  a  justice,  which  must  be  directed 
to  any  constable  or  other  lawful  officer  of  the  county 
shall  be  a  hen  on  the  goods  and  chattels  of  the  defendant 
named  therein,  from  the  levy  thereof  only,  but  shad  not 
be  levied  on  or  enforced  in  any  manner  aga)nst  real  es- 
tate; but  when  a  justice's  judgment  shall  be  made  a  judg- 
ment of  the  superior  court,  as  is  elsewhere  provided,  the 
execution  shall  be  capable  of  being  levied  and  collected 
out  of  any  property  of  the  defendant,  in  execution  and 
it  shall  be  a  hen  on  the  real  estate  of  said  defendant  from 
the  time  when  it  becomes  a  judgment  of  the  superior 
court. 

Sec    843.  Stay  of  execution;  stay  granted  by  justice.    C. 
C.  P.,  s.  505  (a).    1868-'9,  c.  272. 

In  all  actions  founded  on  contract,  whereon  judgments 
are  rendered  in  justices'  courts,  stay  of  execution,  it 
prayed  for  at  the  trial  by  the  defendant  or  his  attorney, 
shall  be  granted  by  the  justices  in  the  following  manner: 
For  any  sum  not  exceeding  twenty-five  dollars  one 
month;  any  sum  above  twenty-five  dollars  and  not 
exceeding  fifty  dollars,  three  months;  for  any  sura  above 
fifty  dollars  and  not  exceeding  one  hundred  dollars,  tour 
months;  for  any  sum  above  one  hundred  do  ars,  six 
months  But  no  stay  of  execution  shall  be  allowed  in 
any  action  wherein  judgment  is  rendered  on  a  former 
judgment  taken  before  a  justice  of  the  peace. 

Sec.  843.  Security  on  stay  of  execution.    C.  C.  P.,  s.  506. 

The  party  praying  for  a  stay  of  execution  shall,  within 
ten  days  after  the  trial,  give  sufficient  security,  approved 


332  COURTS— JUSTICES.  [Chap.  22. 

by  the  jut^tice,  for  payment  of  the  judgment,  with  interest 
thereon  till  paid,  and  cost;  and  the  acknowledgment  of 
the  surety,  entered  by  the  justice  in  his  docket  and  signed 
by  the  surety,  shall  be  sufficient  to  bind  such  surety.  If 
the  judgment  be  not  discharged  at  the  time  to  which 
execution  has  been  stayed,  the  justice  who  awarded  the 
judgment  shall  issue  execution  against  the  principal,  or 
surety,  or  both. 
Bariiuger  v.  Allison,  78 — 79. 

Sec.  844.  Former  judgment.    C.  C.  P.,  s.  507. 

On  the  trial  of  an  action  founded  on  a  former  judg- 
ment, tJie  judgment  itself  shall  be  evidence  of  the  debt, 
subject  to  such  payments  as  have  been  made. 

Sec.  845.  Application  for  re-hearing.    C.  C.  P.,  s.  508. 

When  a  judgment  has  been  rendered  by  a  justice,  in 
the  absence  of  either  party,  and  when  such  absence  was 
caused  by  the  sickness,  excusable  mistake  or  neglect  of, 
the  party,  such  absent  party,  his  agent  or  attorney,  may 
within  ten  days  after  the  date  of  such  judgment,  apply 
for  relief  to  the  justice  who  awarded  the  same,  by  affida- 
vit, setting  forth  the  facts,  which  affidavit  must  be  filed 
by  the  justice;  whereupon  the  justice,  if  he  deem  the  af- 
fidavit sufficient,  shall  open  the  case  for  reconsideration; 
and  to  this  end,  he  shall  issue  a  summons,  directed  to  a 
constable,  or  other  lawful  officer  to  cause  the  adverse 
party,  together  with  the  witnesses  on  both  sides,  to  appear 
before  him  at  a  place  and  at  a  time,  not  exceeding  twenty 
days,  to  be  specified  in  the  summons,  when  the  complaint 
shall  be  re-heard,  and  the  same  proceedings  had  as  if  the 
case  had  never  been  acted  on.  If  execution  has  been 
issued  on  the  judgment,  the  justice  shall  direct  an  order 
to  the  officer  having  such  execution  in  his  hands,  com- 
manding him  to  forbear  all  further  proceedings  thereon, 
and  to  return  the  same  to  the  justice  forthwith. 
Hogan  V.  Kirkliind,  64—250;  Froneburger  v.  Lee,  66—333. 

Sec.  846.  Justice's  judgment  removed  to  another  county, 
how.    C.  C.  P.,  s.  509. 

Any  person,  who  may  desire  to  have  a  justice's  judg- 
ment in  his  favor  removed  to  another  county  to  lie  en- 
forced against  the  goods  and  chattels  of  the  defendant, 
must  obtain  from  the  justice  who  rendered  the  judgment 
a  transcript  thereof,  under  his  hand;  and  must  further 
procure  a  certificate  from  the  clerk  of  the  superior  court 
of  the  county  where  the  judgment  was  rendered,  under 


Chap.  22.]  COUETS-JUSTICES.  333 

the  seal  of  his  court,  that  the  justice  who  gave  the  judg- 
mlnt  was  at  the  -endition  thereof,  a  justice  of  said 
SuntV  On  such  transcript  of  the  judgment,  thus  cer  - 
fied  any  justice  in  any  other  county  may  award  execu- 
tion for  the  suni  therein  expressed. 

McAdeu  V.  Bannister,  63—478. 

Sec  84=7.  Witnesses,  penalties,  &c.    C.  C.  P.,  s.  510. 

The  justice  on  apphcation  of  either  party,  shall,  by  a 
suWna  or  by  an  order  in  writing  on  the  process,  direct 
tbP  roSable  or  other  officer  to  summon  witnesses  to  ap^ 
n£i  and  "  ve  estimony  at  the  time  and  place  appointed 
For  thptrLal.  Each  witness,  failing  to  appear,  sha  1  foiiejt 
and  pay  eight  dollars  to  the  party  at  whose  instance  he 
was  sim^moned,  and  shall  be  t'^^rther  hab  e  to  s.^^  a^^ 
for  all  damage  sustained  by  non-attendance,  i  ne^nne 
herein  imposed  may  be  recovered,  on  motion  before  the 
iustke  wo  tried  the  action,  unless  the  w:tness,  on  a 
Sice  orAve  days,  by  affidavit  or  other  proof,  show  suf- 
ficient excuse  for  his  failure  to  attend. 
Sec  848.  Penalty  for  swearing  before  a  justice,  &c.  K.  C, 
cll5.  s.  2.    1741,  C.30,  s.  3.  . 

Tf'aiiv  person   shall   profanely  swear  or  curse  m  the 
hearingot-   a  jisticeof  the  peace,  l^oldmg  his  cmrt,  the 
justice  may  commit  him  for  a  contempt,  or  fine  him  fifty 
cents. 
Sec.  849.  Code  of  civil  procedure  applicable.    C.  C.  P., 

The^^ode  of  civil  procedure  is  applicable  except  as  herein 
otherwTse  directed,  to  proceedings  in  justice's  courts  con- 
cerning ^'arres^  and  bail,"  substituting  the  word  ;c07^- 
S  ?^for  the  word  "s/.erzlf,"  and  the  words  -justice  of 
the  peace"  L  the  words  ^^udge,  court  or  clerk,"  ^-hen- 
ever  they  occur  in  said  chapter. 

Sec   850.  Arrest,  in  what  cases.    C.  C.  P.,  s.  512. 

The  defendant  may  be  arrested  in  the  following  cases: 
a    When  the  det'endant  has  been  guilty  o    a  fraud  in 
coritracting  the  debt  or  obligation  for  which  the  action  is 

^72Twhen  the  defendant  has  removed  or  disposed  of 
his  property,  or  is  about  to  do  so,  with  mtent  to  defraud 

^'^-fwn^an' action  to  recover  the  possession  of  personal 
property  unjustly  detained,  when  the  property  or  any 


334  COUETS-JUSTICES.  [Chap.  22. 

part  thereof  has  been  concealed,  removed  or  disposed  of, 
so  that  it  cannot  be  found  or  taken  by  tlie  sheritf  or  con- 
stable, and  with  the  intent  that  it  should  not  be  so  found 
or  taken,  or  with  intent  to  deprive  the  plaintiff  of  the 
benefit  thereof,  or  for  damages  for  injuring  or  for  wrong- 
fully taking  or  converting  peisonal  property. 

Sec.  851.  Order  of  arrest,  by  whom  made.    C.  C.  P.,  s.  513. 

An  order  for  the  arrest  of  the  defendant  must  be  ob- 
tamed  from  the  justice  of  the  peace  before  whom  the 
action  is  brought. 

Sec.  853.  Affidavit  to  obtain  order.    C.  C.  P.,  s.  51<t. 

The  order  may  be  made  where  it  appears  to  the  justice 
of  the  peace,  by  aflfidavit  of  the  plaintiff  or  of  any  other 
person,  that  a  sufficient  cause  of  action  exists,  and  that 
the  case  is  one  of  those  mentioned  in  this  chapter. 

Sec.  853.  Code  of  civil  procedure  applicable.    C.  C.  P.,  s. 
516. 

The  code  of  civil  procedure  is  applicable  to  proceedings 
by  attachment  before  justices  of  the  peace,  in  all  cases 
founded  on  contract  wherein  the  sum  demanded  does  not 
exceed  two  hundred  dollars,  and  where  the  title  to  real 
estate  is  not  in  controversy. 

Weavur  v.  Roberts,  84—493;  Faulk  v.  Smith,  84—501. 

Sec.  854.  Jury  list  furnished  to  each  justice.     C.  C.  P.,  s. 

The  clerk  of  the  board  of  commissionei-s  shall  fur- 
nish, on  demand,  to  each  justice  of  the  peace  in  the 
county,  a  list  of  the  jurors  for  the  township  for  which 
such  justice  is  elected  or  appointed. 

Sec.  855.  Ju.stice  tokeep  jury  box.    C.  C.  P.,s.  518. 

Each  justice  shall  keep  a  jury  box,  having  two  divi- 
sions marked  respectively  number  one  and  number  two, 
and  having  two  locks,  the  key  to  be  kept  by  the  jus- 
tice. 

Sec.  856.  Names  of  jurors  to  be  deposited  in  jury  box. 
C.  C.  P.,s.  519. 

Each  justice  shall  cause  the  names  on  his  jury  list  to 
be  written  on  small  scrolls  of  paper  of  equal  size,  and  to 
be  placed  jn  the  jury  box,  in  division  marked  number 
one,  until  drawn  out  for  the  tiial  of  an  issue  as  required 
by  law. 


Chap.  22.  ]  COUETS- JUSTICES.  335 

Sec.  857.  When  trial  by  jury  demanded  or  waived.     C.  C. 

/"trial  bV  jury  must  be  demanded  at  the  time  of  join- 
in^the  issue  of  fact,  and  if  neither  party  demand  at  such 
Smel  jury,  they  shall  be  deemed  to  have  waived  a  trial 
by  jury. 
Sec.  858.  Jury  drawn  and  trial  postponed.     C.  C.  P.,  s. 

When  a  trial  by  jury  is  demanded,  the  justice  shall 
immediately,  in  the  presence  of  the  parties,  proceed  to 
r;1he  nimes  of  twelve  jurors  from  division  marked 
number  one  of  the  ury  box;  and  the  trial  ot  fhe  cause 
shall  thereupon  be  postponed  to  a  time  and  place  to  be 
fixed  by  the  justice. 
Sec.  859.  Suimnouing  of  tliejury.    C.  C.  P.,  s.  522. 

A  hst  of  the  jurors  so  drawn  shall  be  immerjiately  de- 
livtred  by  the  justice  to  any  constable,  or  other  lawful 
officer  witJi  an  order  indorsed  thereon,  directing  him  to 
summon  the  persons  named  in  the  list  to  appear  as  jur- 
oi  at  the  time  and  place  fixed  for  the  trial;  and 
it  is  the  duty  of  the  officer  to  proceed  forthwith  to  sum- 
mon such  jurors,  or  so  many  of  them  as  can  be  found 
According  to  the  order;  and  he  shall  make  return  thereof 
at  the  time  and  place  appointed,  stating  m  his  return  the 
names  of  the  jurors  summoned  by  him. 
Sec.  860.  The  jury  for  the  trial  of  the  cause.    C.  C.  P.,  s. 

At'the  time  and  place  appointed,  and  on  loturn  of  the 
order,  if  the  trial  be  not  further  adjourned,  and  it  ad- 
iourned,  then  at  the  time  and  place  to  whicn  the  trial 
shall  be  adjourned,  the  justice  shall  proceed,  m  the  pres- 
ence of  the  parties,  to  draw  f ''O^  ^he  ]ui^rs  suu^moned 
the  names  of  six  persons  to  constitute  the  juiy  foi  the 
trial  of  the  issue. 

Sec.  861.  Challenge.    C.  C.  P.,  s.  524. 

Each  party  shall  be  entitled  to  challenge,  peremptorily, 
two  of  the  persons  drawn  as  jurors. 

Sec.  862.  What  names  to  he  returned  to  the  jury  box,  or 
destroyed.    C.  C.  P.,  s.  525. 

The  scrolls  containing  the  names  of  jurors  not  sum- 
moned, if  any,  and  of  those  summoned  but  not  drawn, 
and  of  those  drawn,  but  challenged  and  set  aside,  must 


336  COURTS— JUSTICES.  [Chap.  22. 

be  returned  by  the  justice  to  his  jury  box,  in  division 
marked  number  one;  Provided,  that  the  scrolls  contain- 
ing the  names  of  such  as  are  not  legally  liable,  or  legally 
qualified  to  serve  as  jurors,  shall  be  destroyed. 

Sec.  863.  Tales  jurors  may  be  summoned.    C.  C.  P.,  s.  526. 

If  a  competent  and  indifferent  jury  is  not  obtained 
from  the  twelve  jurors  drawn,  as  before  specified,  the 
justice  may  direct  others  to  be  summoned,  from  the  by- 
standers, sufficient  to  complete  the  jury. 

Sec.  864.  Jury  sworn  and  impaneled ;  verdict.    C.  C.  P.,  s. 
537. 

The  jury  shall  be  sworn  and  impaneled  by  the  justice, 
who  shall  record  their  verdict  in  his  docket  and  enter  a 
judgment  in  the  case  according  to  such  vardict. 

Sec.  865.  New  trial ;  appeal.    C.  C.  P.,  s.  538. 

A  new  trial  is  not  allowed  in  a  justice's  court  in  any 
case  whatever;  but  either  party  dissatisfied  with  the 
judgment  in  such  court  may  appeal  therefrom  to  the  su- 
perior court,  as  hereinafter  prescribed. 

Froneberger  v.  Lee,  CG — 333. 

Sec.  866.  Less  than  six  may  l>e  a  jury,  when.    C.  C.  P.,  s. 
53». 

Six  jurors  shall  constitute  a  jury  in  a  justice's  court, 
but,  by  consent  of  both  parties,  a  less  number  may  con- 
stitute it. 

Sec.  867.  Not  compelled  to  serve  out  of  township.    C.  C. 
P.,  s.  530. 

No  person  is  compelled  to  serve  as  a  juror  in  a  justice's 
court  out  of  his  own  township,  except  as  a  talesman. 

Sec.  868.  Jurors  serving  on  trial.    C.  C.  P.,  s.  531. 

The  scrolls  containing  the  names  of  the  jurors  who 
serve  on  the  trial  of  an  issue  must  be  placed  in  the  jury- 
box  in  division  marked  number  two,  until  all  the  scrolls 
in  division  maiked  number  one  have  been  drawn  out. 
As  often  as  that  may  happen,  the  whole  number o- scrolls 
shall  be  returned  to  division  marked  number  one,  to  be 
drawn  out  as  in  the  first  instance. 

Sec.  869.  Deposit  of  jury  fees.    C.  C.  P.,  s.  633. 

Before  a  party  is  entitled  to  a  jury,  he  shall  deposit  with 
the  justice  the  sum  of  three  dollars  for  jury  fees,  and  the 


Chap.  22.J  COTJETS-JUSTICES.  337 

included  in  thesudgmen   as  P^^^°f,.'^=  ~S=;,t,  but  uot 
S^elwir  TtluMu  Sund  d  thi  party  thefees 
of  all  jurors  who  do  not  attend. 
sec.  870.  Adjournmentafterreturnofthejury.    C.  C.  P., 

N;  adjournment  shall  ^l^lf^^:^^t^!rt^7Mt 

cents  each,  such  amount  to  be  an  no  cj^y^J^^^^^^^^^ 
judgment  as  part  of  th^^  co^fe     «-  ^^^.^^^liTappomted', 
the  lurors  shaU  attend  at   i"«  J-^"'^.  and  the  fees  for  the 

without  further  ^^^"f  "?«"^.  ^^^i^^^^^^^^^ 

iury,  deposited  with  the  justice  accoiu    ^  i 

Sec.  871.  NO  process  issued  by  justice  outside  his  own 

S  which  any  suci'ion-resident  defendant  resides. 

Lilly  V.  Purcell,  78-83. 

«o.  87'>    Process   issued  from  a  justice  of  the  Peace  in 

Sec.  872.  l'>^«^*'=^y  ^     ij,  another  county  rendered 

::ii;;'Vnlrs"emerot'justice  in  defendant's  county. 

T^trntiractions^in  courts  of  justices  of  the  peace 
In  all  civil  acuonb  i  ^  f^^d^nts  may  reside  m  a 

whei^  one  or  moie  of  the  deto.^^.^,   .^  ^^^^^  ^^ 

f^'nL  iustice  ofTe  pe^  the  county  where 

^°^    /ptindant  or  defendants  may  reside,  upon  proof 

Z^^SiXS^  1-—  ^^^--^  ^^'^ 


338  COUETS— JUSTICES.  [Chap.  22. 

executed  in  like  manner  as  if  it  had  been  originally  issued 
by  the  justice  indorsing  it. 

Wooten  V.  Maultsby,  69 — 463;  Self  v.  Jenkins.  71—578;  Sossamer  v. 
Hinson,  73—578;  Lilly  v.  Purcell,  78—83. 

Sec.  873.  Certificate  of  the  clerk  of  superior  court ;  en- 
try of  date.    1870-'l,  c.  60,  s.  3. 

In  all  cases  referred  to  in  the  preceding  section,  it  shall 
be  lawful  for  the  clerk  of  the  superior  court  of  the 
county  in  which  the  action  is  brought,  to  certify,  under 
the  seal  of  his  court,  on  the  process  or  a  duplicate  there- 
of, that  the  justice  of  the  peace  who  issued  the  same  is 
an  acting  justice  of  the  peace  in  his  county.  And  in  all 
such  cases  it  shall  be  the  duty  of  any  sheriff  or  constable 
to  whom  it  may  be  directed,  to  make  an  entry  of  the 
date  of  its  reception,  and  to  execute  the  same  as  provided 
for  the  service  of  civil  process  in  courts  of  justices  of  the 
peace,  and  return  it  by  mail  to  the  justice  of  the  peace 
from  whose  court  it  issued. 

Sec.  874.    No    process    served    under  ten  days'   notice. 
1870-'l,  c.  OO,  s.  3.    1876-'7,  c.  57. 

No  justice  of  the  peace  shall  enter  a  judgment  under 
the  two  preceding  sections  against  any  defendant  who 
may  be  a  non-resident  of  his  county,  unless  it  shall 
appear  that  the  process  was  duly  served  upon  liim  at 
least  ten  days  before  the  return  day  of  the  same. 

Sec.  875.  Appeal;  execution.    C.  C.  P.,  s.  534.    1876-'7, 
c.  251,  s.  6. 

The  party  against  whom  judgment  is  rendered  in  any 
civil  action  in  a  justice's  court  may  appeal  to  the  superior 
court  from  the  same;  but  no  appeal  shall  prevent  the  is- 
suing of  an  execution  on  such  judgment  or  work  a 
stay  thereof,  except  as  hereinafter  provided. 

Marshall  v.  Lester,  2  Mur.,  227;  Grissett  v.  Smith,  1  Phil.,  164;  Critcher 
V.  McCadden,  64—363;  Steadman  v.  Jones,  65—388:  Fronebcrger  v.  Lee, 
66—333;  Marsh  v.  Cohen,  68—283;  Green  v.  Hobgood,  74—234;  Carmer  v. 
Evers,  80—55;  Koonce  v.  Pelletier,  83—236;  State  v.  Grouse,  86—017; 
Hahn  v.  Latham,  87—172. 

Sec.  876.  Appeal ;  when  to  be  taken.    C.  C.  P.,  s.  535. 
1876-'7,  c.  251,  s.  7. 

The  appellant  shall,  within  ten  days  after  judgment, 
serve  a  notice  of  appeal,  stating  the  grounds  upon  which 
the  appeal  is  founded.  If  the  judgment  is  "rendered 
upon  process  not  personally  served,  and  the  defendant 


Chap.  22.]  COURTS-JUSTICES.  339 

did  not  appear  and  answer,  he  shall  have  fifteen  days, 
after  personal  notice  of  the  rendition  of  the  judgment, 
to  serve  the  notice  of  appeal  herein  provided  for. 

Stcadmaa  v.  Jones,  G5-388;  Marsh  v.  Colien,  68-283;  Green  v.  Hob- 
good.  74-234;  McDaniel  v.  Watldus,  7G-399;  Sparrow  v^»^^'i''«°"  Col- 
lege, 77-35;  R.  R.  Co,  v.  Richardson,  83-343;  Spaugh  v.  Bouer,  85-208; 
Hahn  v.  Latham,  87—173. 

Sec    877.  Wben   appellant   not  to  give   written   notice. 
1801)-'70,  c.  187,  s.  1.     187G-'7,  c.  361,s.  8. 

Where  any  party  prays  an  appeal  from  a  judgment 
rendered  in  a  justice's  court,  and  the  adverse  party  is 
present  in  person  or  by  attorney  at  the  time  of  the 
prayer,  the  appellant  shall  not  be  compelled  to  give  any 
written  notice  of  appeal  either  to  the  justice  or  to  the 
adverse  party. 

Shepherd  v.  Lane,  3  Dev.,  148;  Croom  v.  Mornsey,  63-591;  Steadman 
V  Jones  65-388;  Mar^h  v.  Cohen,  68-283;  Com'rs  v.  Capeheart,  71-156; 
Richardson  v.Debnam,  75-890;  Sutlle  v.  Green,  7&-76. 

Sec.  878.  Justice  to  make    return  of  the  appeal  to  the 
clerk  of  the  appellate  court  within  ten  days.    C.  C.  P., 

s.  587.  ,  /.,       ,,  -J! 

The  instice  shall,  within  ten  days  after  the  service  of 
the  notice  of  appeal  on  him,  make  a  retui-n  to  the  appel- 
late court  and  file  with  the  clerk  thereof  the  papers,  pro- 
ceedings and  judgment  in  the  case,  with  the  notice  of  ap- 
peal served  on  him.  He  may  be  compelled  to  make  such 
return  by  attachment.  But  no  justice  shall  be  bound  to 
make  such  return  until  the  fees,  prescribed  by  law  for 
this  service,  be  paid  him.  The  fee  so  paid  shall  ue  m- 
cluded  in  the  costs,  in  case  the  judgment  appealed  from 
is  reversed. 

Ledbetter  v.  Osborne,  66-379;  Poston  v.  Rose,  87—279. 

Sec.  879.  If  return  defective,  it  may  be  amended.    C.  C. 

If  the  return  be  defective,  the  judge  or  clerk  of  the  ap- 
pellate court  may  direct  a  further  or  amended  return,  as 
often  as  may  be  necessary,  and  may  compel  a  comph- 
ance  with  the  order  by  attachment. 

Sec.  880.  Clerk  of  superior  court  to  docket  appeal.    C.  C. 
P.,  s.  539.     187C-'7,  c.  251,  s.8. 

When  the  return  is  made,  the  clerk  of  the  appeUate 
court  shall  docket  the  case  on  his  trial  docket,  for  a  new 


340  COURTS— JUSTICES.  [Chap.  22. 

trial  of  the  whole  matter  at  the  ensuing  term  of  said 
court. 

Cowles  V.  Hays,  67—128;  Com'rs  v.  Addington,  68—254  ;  Com'rs  v. 
Capeheart,  71—156. 

Sec.  881.  The  appeal  to  be  heard  on  the  original  papers. 
C.  C.  P.,  s.  640. 

The  appeal  shall,  in  all  cases,  be  heard  on  the  original 
papers,  and  no  copy  thereof  need  be  furnished  for  the 
use  of  the  appellate  court. 

Ledbetter  v.  Osborne,  66—379;  Com'rs  v.  Capeheart,  71—156. 

Sec.  882.  Execution  of  judgment,  how  stayed.    C.  C.  P., 
s.  541. 

If  the  appellant  desire  a  stay  of  execution  of  the  judg- 
ment, he  may  apply,  at  any  time,  to  the  clerk  of  the  ap- 
pellate court  for  leave  to  give  the  undertaking,  as  pro- 
vided in  a  subsequent  section;  vpho  shall,  upon  the  un- 
dertaking being  given,  make  an  order  that  all  proceed- 
ings on  the  judgment  be  stayed. 

Rush  V.  Steamboat  Co.,  68—72;  DeiT  v.  Stubbs,  83—539. 

Sec.  883.  Appellant  may  give  undertaking.    1869-'70,  c. 
187,  s.  2. 

In  all  cases  of  appeal  from  justices'  courts  the  appellant 
may  give  an  undertaking  for  the  appeal  before  the  justice 
vi^ho  tried  the  cause,  and  who  shaU  indorse  his  approval 
thereon,  instead  of  before  the  clerk  of  the  appellate  court. 

Sec.  884.  Same,  undertaking  to  be  given.    C.  C.  P.,  s.  642. 
1879,  c.  68. 

The  undertaking  shall  be  in  writing,  executed  by  one 
or  more  sufficient  sureties,  to  be  approved  by  the  justice 
or  clerk  making  the  order,  to  the  effect  that  if  judgment 
be  rendered  against  the  appellant,  the  sureties  will  pay 
the  amount  together  with  ah  costs  awarded  against  the 
the  appellaiit,  and  when  judgment  shall  be  rendered 
against  the  appellant,  the  appellate  court  shall  give  judg- 
ment against  the  said  sureties. 

Rush  V.  Steamboat  Co.,  08-72;  Bank  v.  McArthur,  83—107;  Hamilton 
V.  Mooney,  84—12;  Brown  v.  Brittain,  84—552. 

Sec.  885.  Same,  delivery  and  service  of  order  on  whom. 
C.  C.  P.,  s.  543, 

A  deUvery  of  a  certified  copy  of  the  order  hereinbefore 
mentioned  to  the  justice  of  the  peace,  shall  stay  the 
issuing  of  the  execution  on  tlie  judgment;  if  it  have  been 


Chap.  22.]  COURTS— JUSTICES.  341 

issued,  the  service  of  a  certified  copy  of  such  order  on  the 
officer  holding  the  execution  shall  stay  further  proceed- 
ings thereon.  A  certified  copy  of  such  order  shall  also 
be  served  on  the  respondent,  or  on  his  agent  or  attorney, 
within  ten  days  after  the  making  thereof. 

Sec.  886.  Kestitution.    C.  C.  P.,  s.  544. 

If  the  judgment  appealed  from,  or  any  part  thereof, 
be  paid  or  collected,  and  the  judgment  be  afterv^ards  re- 
versed, the  appellate  court  shall  order  the  amount  paid 
or  collected  to  be  restored,  with  interest  from  the  time  of 
such  payment  or  collection.  The  order  may  be  obtained 
on  proof  of  the  facts  made  at  or  after  the  hearing  of  the 
appeal,  on  a  previous  notice  of  six  days.  If  the  order  be 
obtained  before  the  judgment  of  reversal  is  entered,  the 
amount  may  be  mcluded  in  the  judgment. 

Sec.  887.  Jurisdiction,  where  property  does  not  exceed 
fifty  dollars.    1876-'7,  c.  251,  s.  1. 

Justices  of  the  peace  shall  have  concurrent  jurisdiction 
of  civil  actions  not  founded  on  contract,  wherein  the 
value  of  the  property  in  controversy  does  not  exceed 
fifty  dollars. 

Krider  v.  Ramsay,  79—354;  McDonald  t.  Cannon,  83—245;  Womble  v. 
Leach,  83—84;  Jones  v.  Palmer,  83—303;  Boyce  v.  Williams,  84^375; 
Allen  v.  Jackson,  86—311;  Boing  v.  R.  R.  Co.,  87—360. 

Sec.  888.  Recovery  of  damages  to  real  estate.     1876-'7,  c. 
351,  s.  3. 

All  actions  in  a  court  of  a  justice  of  the  peace  for  the 
recovery  of  damages  to  real  estate,  or  for  the  conversion 
of  personal  property,  or  any  injury  thereto,  shall  be 
commenced  and  prosecuted  to  judgment  under  the  same 
rules  of  procedure  as  provided  in  civil  actions  in  a  jus- 
tice's court. 

Sec.  889.  Claimand  delivery  of  personal  property.    1876- 
'7.  c.  351,  s.  3. 

The  code  of  civil  procedure  is  applicable,  except  as 
herein  otherwise  provided,  to  proceedings  in  justices' 
courts  concerning  claim  and  delivery  of  personal  proper- 
ty, substituting  the  words  "justice  of  the  peace"  for 
"clerk  or  clerks  of  the  court,"  and  inserting  the  words, 
"or  constable"  after  "sheriff,"  whenever  they  occur. 


342  COURTS— JUSTICES.  [Chap.  22. 

Sec.  890.  Wlien  a  delivery  is  claimed.     1876-'7,  c.  251, 
s.  4. 

When  a  delivery  is  claimed  an  affidavit  must  be  made 
by  the  plaintiff,  his  agent  or  attorney,  before  the  justice 
in  whose  court  the  action  is  to  be  tried  or  some  other  jus- 
tice of  the  peace,  showing: 

(1)  That  the  plaintiff  is  the  owner  of  the  property 
claimed  (particularly  describing  it)  or  is  lawfully  entitled 
to  its  possession  by  virtue  of  a  special  property  therein, 
the  facts  in  respect  to  which  shall  be  set  forth; 

(2)  That  the  property  is  wrongfully  detained  by  the  de- 
fendant; 

(3)  The  alleged  cause  of  detention  thereof  according  to 
his  best  knowledge,  information  and  belief; 

(4)  That  the  same  has  not  been  taken  for  a  tax  assess- 
ment or  fine  pursuant  to  a  statute,  or  seized  under  an  exe- 
cution or  attachment  against  the  property  of  the  plain- 
tiff, or  if  so  seized  that  it  is  by  statute  exempt  from  such 
seizure;  and 

(5)  The  actual  value  of  the  property. 

Poslon  V.  Rose,  87—279. 

Sec.  891.  Sufficiency  of  sureties.    1876-'7,  c.  251,  s.  5. 

The  defendant  within  three  days  after  the  service  of  a 
copy  of  the  affidavit  and  undertaking  may  give  notice  to 
the  officer  serving  the  same,  to  the  plaintiff"  or  his  attor- 
ney, that  he  excepts  to  the  sufficiency  of  the  sureties;  if 
he  fail  to  do  so  he  shall  be  deemed  to  have  waived  all  ob- 
jection to  them.  When  the  defendant  excepts  to  the 
sureties  they  shall  justify  before  the  justice  on  giving  to 
the  defendant  or  his  attorney  notice  of  the  time  and 
place,  which  shall  not  be  more  than  three  days  from  the 
service  of  notice  of  tlie  exception,  and  the  sheriff  or  con- 
stable shall  be  responsible  for  the  sufficiency  of  the 
sureties  until  the  objection  to  them  is  waived  as  above 
piovided,  or  until  they  shaU.  justify  or  new  sureties  shall 
be  substituted  and  justify. 

Sec.  892.  Criminal  jurisdiction  of  justices  of  the  peace. 
Const.,  Art.  IV.,  s.  27.  1879,  c.  92,  ss.  2,  11.  1881, 
c.  210. 

Justices  of  the  peace  shall  have  exclusive  original  juris- 
diction of  all  assaults,  assaults  and  batteries,  and  affrays, 
where  no  deadly  weapon  is  used  and  no  serious  damage 
is  done,  and  of  all  criminal  matters  arising  within  their 
counties,  where  the  punishment  prescribed  by  law  shall 
not  exceed  a  fine  of  fifty  dollars,  or  imprisonment  for 


HAP.  22.]  COURTS- JUSTICES.  3i3 

,hirty  days:  Provided,  that  justices  of  the  peace  shall 
have  no  jurisdiction  over  assaults  with  intent  to  kill,  or 
assaults  with  intent  to  commit  rape,  except  as  commit- 
ting magistrates:  Provided  further,  that  nothing  m  this 
section  shall  prevent  the  superior,  inferior  or  criminal 
coSs  from  finally  hearing  and  determming  such  affrays 
as  shall  be  committed  withm  one  mile  of  the  place  where 
and  during  the  time  such  court  is  being  held;  nor  shall 
Sis  section  be  construed  to  prevent  said  courts  from 
assuming  jurisdiction  of  ah  offences  whereof  exclusive 
odginal!urisdiction  is  given  to  justices  of  the  peace,  if 
some  justice  of  the  peace,  withm  six  months  after  the 
commission  of  the  offence,  shall  not  have  proceeded  to 
take  official  cognizance  of  the  same. 

Passim  1868-'9,  c.  178,  sub.  c.  4.  s.  2  ;  State  v.  Johnson,  64-591;  State 
V  Hampton,  77-536;  Stale  v.  Edney,  80-360;  State  v.  Moore,  83-659 ; 
State  V  Taylor  83-601;  State  v.  Berry,  83-603;  State  v.  Taylor.  84-773; 
State  V.  Watts,  85-517;  State  v.  Keaves,  85-553;  State  v.  Powell, 
86—040. 

Sec.  893.  Additional  jurisdiction,  peace  warrants,  bast- 
ardy, &c.    1879,  c.  93,  s.  2. 

Justices  of  the  peace  shall  also  have  exclusive  original 
jurisdiction  of  all  such  peace  warrants  and  proceedings 
thereunder  as  they  shall  assume  jurisdiction  of,  and  of  all 
bastardy  proceedings  and  issues  arising  thereunder,  and 
to  take  bonds  from  defendants  in  such  proceedmgs,  as 
provided  for  in  the  chapter  entitled  "  Bastardy." 

State  V.  Bass,  75—139;  State  v.  Cooley,  78-538;  State  v.  Parish,  83-618; 
State  V.  Sneed.  84—816;  State  v.  Crouse,  86—617. 

Sec.  894.  Proceedings  on  peace  warrant.     1879,  c.  92, 
s.  9. 

Whenever  any  person  complained  of  on  a  peace  war- 
rant shall  be  brought  before  a  justice  of  the  peace,  such 
nerson  may  be  required  to  enter  into  a  recognizance, 
payable  to  the  state  of  North  Carohna  m  such  sum  not 
exceeding  one  thousand  dollars,  as  such  justice  shall 
direct  wtth  one  or  luore  sufficient  sureties,  to  appear  be- 
fore some  justice  of  the  peace  within  a  period  not  exceed- 
iuf  six  months,  and  not  depart  the  court  without  leave 
and  in  the  meanwhile  to  keep  the  peace  and  be  of  good 
behavior  towards  all  the  people  of  the  state,  and  particu- 
larly towards  the  person  requiring  such  security. 


344  COURTS— JUSTICES.  [Chap.  22. 

Sec.  895.  Party  convicted  to  pay  costs;  if  accused  acquit- 
ted, complainant  to  pay  costs.  1868-'9,  c.  178,  sub 
chap.  4,  s.  19.    1879,  c.  92,  s.  3.    1881,  c.  176. 

The  party  convicted  in  a  criminal  action  or  proceeding 
before  a  justice,  shall  always  be  adjudged  to  pay  the  costs; 
and  if  the  party  charged  be  acquitted,  the  complainant 
shall  be  adjudged  to  pay  the  costs  ;  and  may  be  impris- 
oned for  the  non-payment  thereof,  if  the  justice  shall  ad- 
judge that  the  prosecution  was  frivolous  or  malicious. 
But  in  no  action  or  proceeding,  commenced  or  tried  in  a 
court  of  a  justice  of  the  peace,  shall  the  county  be  hable 
to  pay  any  costs. 

Stale  V.  Murdock,  85—598. 

Sec.  896.  When  justice  has  not  final  jurisdiction,  must 
commit  accused  to  prison,  or  require  recognizance  for 
his  appearance  to  the  next  term  of  the  court  having 
jurisdiction.    1868-'9,  c.  178,  sub  chap.  4,  s.  7.    1879, 
c.  302,  s.  2. 
In  all  cases  where  a  justice  of  the  peace  shall  not  have 
final  jurisdiction  of  the  offence,  he  shall  desist  from  any 
final  determination  of  the  action  or  complaint,  and  either 
commit  the  accused  to  prison,  or  require  from  him  a,  re- 
cognizance with  sufficient  sureties  and  in  a  sufficient 
amount  for  his  appearance  at  the  next  term  of  any  court 
of  his  county  having  jurisdiction,  to  answer  the  charge. 
He  shall  also  bind  the  complainant  and  the  witnesses 
over  to  appear  in  Uke  manner  and  testify;  and  he  shall 
return  the  papers,  with  a  statement  of  his  proceedings, 
to  the  clerk  of  the  court  on  or  before  the  fii-st  day  of  the 
next  term  thereof. 

State  V.  Sneed,  84—816. 

Sec.  897.  When  justice  is  satisfied  that  he  has  jurisdic- 
tion, he  shall  proceed  to  determine  the  case.  1868-'9, 
c.  178,  sub  chap.  4,  s.  8. 

When  the  justice  shall  be  satisfied  that  he  has  jurisdic- 
tion, if  no  jury  shall  be  asked  for, he  shall  proceed  to  de- 
termine the  case,  and  shall  either  acquit  the  accused  or 
find  him  guilty,  and  sentence  him  to  such  punishment  as 
the  case  may  require,  not  to  exceed  in  any  case  a  fine  of 
fifty  dollars,  or  imprisonment  in  the  county  jail  for  thirty 
days. 

Sec.  898.  Jury  to  be  allowed,  if  asked  for.  1868-'9,  c. 
178,  sub  chap.  4,  s.  9. 

If  either  the  complainant  or  the  accused  shall  ask  for 


Chap.  22.]  COUETS-JUSTICES.  345 

it,   the  justice  shall   allow  a  trial    by  juiy,   as  is  pro- 
vided in  civil  actions  before  justices  of  the  peace. 

Sec.  899.  What  to  be  submitted  to  the  jury.  1868-'9,  c. 
178,  sub  chap.  4,  s.  10. 

In  case  a  trial  byjury  shall  be  had,  the  justice  shall 
submit  to  the  jury  in  each  case  simply  the  question  of  the 
guilt  or  innocence  of  the  accused  of  the  offence  charged, 
and  shall  enter  the  verdict  on  his  docket,  and  adjudge 
accordingly. 

Sec.  900.  Accused  may  appeal;  trial  de  novo  in  superior 
court.  1868-'9,  c.  178,  sub  chap.  4,  s.  11.  1879,  c. 
92,  s.  10. 

The  accused  may  appeal  from  the  sentence  of  the  jus- 
tice to  the  superior  court  of  the  county.  On  such  appeal 
being  prayed,  the  justice  shall  recognize  both  the  prose- 
cutor and  the  accused,  and  all  the  material  witnesses,  to 
appear  at  the  next  term  of  the  court,  in  such  sums  as  he 
shall  think  proper;  and  he  may  require  the  accused  to 
give  sureties  for  liis  appearance  as  aforesaid.  In  all  cases 
of  appeal,  the  trial  shall  be  anew,  without  prejudice  from 
the  former  proceedings. 

State  V.  Quick,  72—241;  Slate  v.  Tyler.  85—569;  SUter.  Murdock,  85— 
598;  State  v.  Powell,  86—640. 

Sec.  901.  Justice  to  transmit  papers  to  clerk  of  appellate 
court;  what  his  return  to  set  forth.  1868-'9,  c.  178, 
s»ib  chap.  4,  s.  12. 

In  every  case  whether  an  appeal  shall  be  prayed  or  not, 
the  justice  shall  forthwith  transmit  to  the  clerk  of  the 
superior  court  of  the  county  all  papers  in  the  case,  to- 
gether with  a  copy  of  his  prehminary  finding,  of  the  ver- 
dict, if  any,  of  his  determination  of  the  facts  if  there  shall 
have  been  no  trial  by  jury,  and  of  the  sentence,  in  which 
shali  be  set  forth  all  the  facts  found  by  him,  as  well  as 
his  finding  of  those  which  were  alleged  in  the  complaint, 
and  which  were  found  by  him  not  to  be  proved. 

Sec.  902.  Either  party  paying  fees,  entitled  to  copy  of 
complaint  and  other  papers.  1868-'9,  c.  178,  sub 
chap.  4,  s.  13. 

He  shall  give  to  either  party  on  request,  and  on  pay- 
ment of  his  lawful  fee,  a  copy  of  the  complaint  and  of 
his  finding  and  sentence. 


3i6  COURTS— JUSTICES.  [Chap.  22. 

Sec.  903.  Finding  and  sentence  pleaded  in  bar  of  indict- 
ment.   186S-'9,  c.  178,  sub  chap.  4,  s.  14. 

Such  findin,^  and  sentence  may  be  pleaded  in  bar  of  any 
indictment  subsequently  found  for  the  same  offence. 

Sec.  904.  Justice  to  imprison  the  gniilty  party,  if  fine  and 
costs  not  paid.     1868-'9,  c.  178,  sub  chap.  4,  s.  15. 

If  the  justice  shall  sentence  the  party  found  by  him  to 
be  guilty  to  pay  a  fine  and  costs,  and  the  same  shall  not 
be  immediately  paid,  the  justice  shall  commit  the  guilty 
person  to  the  county  jail  until  the  same  shall  be  paid,  or 
until  he  shall  be  otherwise  discharged  according  to  law. 

Sec.  905.  Imprisoned  party  to  pay  costs  before  discharged. 
1868-'9,  c.  178,  sub  chap.  4,  s.  16. 

If  the  sentence  be  that  the  guilty  person  be  imprisoned 
for  a  time  certain,  and  that  he  pay  the  costs,  there  shaU 
be  added  to  it  that  he  shall  remain  in  prison  after  the  ex- 
piration of  the  fixed  time  for  his  imprisonment  until  the 
costs  shall  be  paid;  or  until  he  shall  otherwise  be  dis- 
charged according  to  law. 

State  V.  Cannady,  78—539. 

Sec.  906.  Justices  of  the  peace  to  make  returns  of  all 
criminal  actions  disi>osed  of  by  them  to  the  clerk  of  the 
superior,  criminal  or  inferior  court.    1869-'70,  c.  110. 

It  shall  be  the  duty  of  each  justice  of  the  peace  on  or 
before  Monday  of  every  term  of  the  superior,  criminal  or 
inferior  court  of  his  county,  to  furnish  the  clerk  of  said 
court  with  a  list  of  the  names  and  offences  of  all  parties 
tried  and  finally  disposed  of  by  such  justice  of  the  peace, 
together  with  the  papers  in  each  case,  in  all  criminal 
actions,  since  the  last  term  of  the  supeiior,  criminal  or 
inferior  court.  The  clerk  of  the  court  shall  hand  a  copy 
of  such  list  to  the  sohcitor  and  to  the  grand  jury  at  each 
term  of  the  court;  and  no  indictment  shall  be  found 
against  any  party  whose  case  has  been  so  finally  disposed 
of  by  any  justice  of  the  peace:  Provided,  that  this  sec- 
tion shaU  not  be  deemed  to  extend  or  enlarge  or  other- 
wise affect  the  jurisdiction  of  justices  of  the  peace,  ex- 
cept as  provided  by  law. 

Sec.  907.  Actions  removable  from  one  justice  of  the  peace 
to  another  upon  athdavit;  proviso.  1880,  c.  15.  1883, 
c.  60. 

In  all  proceedings  and  trials,  both  criminal  and  civil, 
before  justices  of  the  peace,  the  justice  before  whom  the 


Chap.  22.J  COURTS-JUSTICES.  347 

writ  or  summons  is  returnable,  shall  upon  affidavit  made 
by  either  party  to  the  action  that  he  is  unable  to  obtain 
iustice  before  him,  move  the  same  to  some  other  justice 
Sing  in  the  same  township,  or  to  the  justice  ot  some 
neiahbSring  township  if  there  be  no  other  justice  m  said 
township:  Provided,  thRt  no  cause  shall  be  more  than 
on^e  removed;  Provided  further,  that  such  motion  to  re- 
move  shaU  be  made  before  evidence  is  introduced 

Sec.  908.  Process,  &c.,  not  to  be  auasbed  for  want  of 
form.  B.  C,  c.  3,  s.  1.  K.  C,  c.  62,  s.  32.  K.  S.,  c.  3, 
s.  1.    1794,  c.  414,  s.  16.  ,    ^  •     x- 

Coprocessor  other  proceeding  begun  before  a  ]ustic^ 
ofWpeace,  whether  in  a  civil  or  a  criminal  action,  shaU 
be  quashed  or  set  aside,  for  the  want  of  form,  if  the 
essential  matters  are  set  forth  therem;  and  the  court  in 
whkh  any  such  action  shall  be  pending  shall  have 
power  to  kmend  any  warrant,  process,  pleading  or  pro- 
ceeding in  such  action,  either  in  form  or  substance  for 
thrfurtherance  of  justice,  on  such  terms  as  shall  be 
deemed  just,  at  any  time  either  before  or  after  judg- 

"Tadc  V  Young.  2  D.  and  B.,  526;  Clark  v.  Hellen.  1  Ired.,  431;  Green 

v.Serry,2  Ired.,  344;   Green  v.  Cole,  13  Ired..  425;  State  v.  Bryson. 

84-780. 

Sec.  909.  Forms  to  be  used  injustice's  court.    1868-'9,  c. 

The  following  forms,  or  substantially  similar,  shall  be 
sufficient  in  all  cases  of  proceedings  in  civil  actions,  pro- 
vided for  in  this  chapter: 

[No.  1.] 

COmiON  FORM. 

A  B ) 

against  >  Justice's  Court. 

State' of" lSr&' Carolina,   to  any  constable    or  other  lawful  officer    of 
...county,  greetikg: 
We  'command  you  to  summon  C  D.  to  appear  before  G.WH.,  Esq 
one  of  the  justices  of  the  V'^^^^;i^^^^^l^,-;-:  ^^  ^l^^  ^ 

Justice  of  the  Peace. 


348  COURTS  -  JUSTICES.  [Chap.  22. 

[No.   2.] 

FORM  ON  ALLOWING  APPLICATION  TO  RE-HEAR. 

(Title,  &c.,  as  in  No.  1.) 

Whereas,  A.  B.,  plain'iff  above-named,  (or  C.  D.,  defendant  above- 
named)  lias  applied  by  affidavit,  which  is  filed,  for  a  re-hearing  in  the 
ab  )ve  cutitled  aciion;  wherein  judgment  was  rendered  against  the  sa'd 
plaiutlH,  (or  defendant)  in  his  absence,  at  the  trial  thereof,  before  the  nnder- 

signed  on  the. . .  .daj'  of ,18  . . ;    and  such  application  having  been 

allowed,  and  the  cause  opened  for  reconsideratiou. 

Now,  therefore,  we  command  yon  to  summon  the  said  plaintiff  (or 
defendant)  to  appear  before  G.  W.  II.,   Esq.,  one  of  the  justices  of  the 

peace  for  the  county  of on  the day  of 18. . ., 

at ,  in  said  county;  when  and  where  the  complaint  will  be 

re-heard  and  Ihi;  same  proceedings  be  had  as  if  the  C;isc  had  not  been  acted 
on;  and  have  you  then  and  there  this  precept  with  the  date  and  manner  of 
its  service. 

Hereof  fail  not.     Witness  our  said  justice,  this. . .  .day  of 18. . . 

G.  W.  U 

Justice  of  tlie  Peace. 

[No.  3.] 

AFFIDAVIT  TO  OBTAIN  ATTACHMENT. 

General  Form. 

A B ) 

against  }  County  of 

C D ) 

A.  B.,  plaintiff  above-named,  being  duly  sworn,  deposes  and  says: 

1.  That  the  defendant  C.   D.   is  indebted  to  the  plaintiff  in  the  sura  of 

dollars,  (state  any  cause  of  action  founded  on  contract,  specifying 

the  amount  of  the  claim,  and  the  grounds  thereof.) 

2.  That  the  said  defendant  (state  any  fact  or  facts,  so  as  to  bring  the  ease 
within  one  of  tlic  classes  in  which  au  attachment  may  issue.  The  facts 
must  be  stated  positively  and  allirmatively,  not  merely  upon  informa- 
tion and  belief,  except  where  a.  fact  is  alleged  with  a  pariicidar  intent. 
The  intent  in  such  case  may  be  stated  as  on  information  and  belief.  See 
No.  4). 

.  A.B 

Sworn  to  and  subscribed  before  me,  this. . .  .day  of ,  18. . . 

G.  W.  II 

Justice  of  the  Peace. 

[No.  4.] 

ANOTHER  FORM  OF  AFFIDAVXT. 

(Title,  &c.,  as  in  No.  8). 

A.  B.,  plaintiff  above-named,  being  duly  sworn,  deposes  and  snys: 

1.  That   the  defendant,    C.   U.    is   indebted   to  plaintiff  in  the  .sum  of 

_.'. dollars,   lor  goods  sold  and  delivered  to  said  defendant  by  the 

plaintiff  on  or  about  the day  of ,  18... 


Chap.  22.]  COURTS-JUSTICES.  349 

3.  That  the  said  defendant  has  ^^^^^^^^^  ^,^^0 

creditors).  ^,  B 

(Sworn  to,  &c.,  as  in  No.  2.) 

[No.  5.n  i 

i 
AFFIDAVIT  AGAINST  A  FOREIGN  CORPORATION.  I 

^ a^'aiMi [countyof 

The  Highland  Mining  Company.  ) 

permission  of  plainufE,  from  the  ....  day  ot ,10.., 

"^  2V  Tbkt^^he  defendants  a  foreign  corporation,  created  under  the  laws  of 

*'3.' Tlat  the  canse  of  action  above  stated,  arose  in  th^  sUte.^ 

(Sworn  to,  &c.,  aa  in  No.  3.) 

[No.  6.] 

UNDERTAKING  UPON  ATTACHMENT. 
(Title  as  in  No.  3  or  5.) 
Whekcas  the  plaintiff  above  named  is  about  to  apply  for  a  warrant  of 

son  of  such  attachment.  J.  W.  B 

w.  b.  M 

Signed  and  delivered  in  the  presence  of  G.  W.  H.,  Esq.,  this  ....  day 

of l^--  G.W.H 

Justice  of  tlie  Peace. 

[No.  7.] 

WARRANT  OF  ATTACHMENT. 
'agriimi  [  Justice's  Court. 

Q  1) ) 

'  State'ot  North  Carolina,  to  any  constable  or  other  lawful  officer  of 

county,  GKEKTINQ: 


350  COUETS— JUSTICES.  [Chap.  22. 

_  It  appearing  by  affidavit  to  the  undei-signcd  that  a  cause  of  action  exists 
in  favor  of  the  plaintiff  against  the  defendant  for  the  sum  of dol- 
lars, and  that  the  defendant  is  not  a  resident  of  this  state  (orollicrwise  as 
the  fact  may  be),  and  the  plaiiilifl  having  giving  the  undertaking  as'  re- 
quired by  law : 

Now.  therefore,  you  are  commanflcd  forthwith  to  attach  and  safely  keep 
all  the  property  of  tlie  said  defenJant  C.  D.  in  your  county,  or  so  much 
thereof  as  may  bo  sufficient  to  .=  ilisfy  the  said  phdntiff's  demand,  with  costs 
and  expenses;  and  have  you  Ibis  warrant  before  G.  W.  II.,  one  of  the  jus- 
tices of  the  peace  for  your  county,  at  his  oflice  in  said  county,  on  the 

day  of 18. .,  with  your  proceedings  hereon. 

Witness  our  said  justice  this day  of    18 

G.W.  H..' 

Justice  of  Vie  Peace. 

[No.  8.] 
officer's  return  to  be  indorsed  on  attachment. 

I,  O.  p.  M.,  constable  (or  sheriff)  of county,  do  hereby  return 

that,  by  virtue  of  the  within  attachment,  I  have  seized  and  taken  into  my 
possession  the  tangible  personal  property  (or,  have  levied  on  the  real  estate, 
as  tlie  case  may  be.)  of  the  defendant  within  named,  specified  in  the  inven- 
tory hereto  annexed. 

Dated  this day  of ,18 

O.P.M 

[No.  9.] 
inventory  op  property  attached  to  above  return. 

A B i 

againft  >•  County  of 

C D j 

I  do  hereby  certify  that  the  following  is  a  true  and  just  inventory  of  all 
the  property  seized  or  levied  on  by  me  under  a  warrant  of  attachment 
issued  111  the  above  entitled  action  by  G.  W.  11  ,  Esq.,  with  a  statement  of 
the  books,  vouchers,  papers,  rights  and  credits  taken  into  my  custody  by 
virtue  of  said  warrant.     (Insert  list  of  property  by  items.) 

I  do  further  testify  that  the  following  properly  mentioned  in  the  above 
invenlory  is  perishable,  and  that  the  expense  of  keepinsr  the  same  until  the 
termination  of  the  suit  would  exceed  one-fifth  of  its  value-  and  I  do  hereby 
apply  to  this  court  for  authority  to  sell  the  same.  (Insert  a  list  of  perish- 
able properly.) 

Dated  this day  of 18. . 

O.P.M 

Constable  {or  Sheriff.) 

[No.  10.] 

ORDER  DIRECTING  SALE  OF  PERISHABLE  PROPERTY. 

A B 1 

against  \  Justice's  Court. 

C D 


County  of 

It  appearing  by  the  inventory  returned  by  O.   P.   M.,   constable  (or 
Bhcrilr,)  under  the  warrant  of  attachment  granted  in  this  action,  that  the 


CHAP.  22.]  COURTS-JUSTICES.  351 

following  property  n^entioned  in  said  inventory  is  perishable,  to  wif.  (In- 
sert here' lie  list  o^  P^'^'f ,f  f  P^l^fiid^P  operty  be  sold  by  Ibe  said  officer  at 
It  is  tbercfore  ordered  tbat '' «  ^?'^  P' "^^  ,^„ii  diem  advisable,  aud  tbat 
^ST^S^^^^ottS:^:^^  sale  of  personal  prope.ty  on 
execulinn.  nmeeeds  of  such  sale  be  retained  by  said 

had  not  been  sold.                                                  ig 
Dated  this dayof G.  W.  H ■  •  •- 

Jmtice  of  the  Peace. 

[No.  11-] 

SmS'iv,  upon,  n' SSSo^ilTd      DesSibi  a.  p.BicuMy  » 

^DatedtWs dayof O.  P.  M •••-., 

Constable  (or  Sheriff.) 


6er«a  with  the  above  ""'  «.™ '°"„„  ",=th. ^mant  «t  » 

Daledlhis day  of O.'P.  M „,    .,, 

ConataUe  {pr  Sheriff.) 

[No.   12.] 

OKDEK  PIKECTING  THIRD  PERSON  (H.  B.)  TO  APPEAR  ANB  BE 
""  EXAMINED. 

^ «^;j^« I  Justice's  Court. 

C D )  County  of 


iliallie  sair  II.  !>•  ■>;'"=■"'"  ■ ,      „.;,i   ii     r  to  the  cleienuaui,  ui  mv- 

■me  at  mv  office,  on  Ibe •  •  -  d.iy  ot 

amincd  on  oatli  concerning  the  same.  ^^ 

Daledtbis day  ot G.  W.  H 

JuMice  of  tlus  Peace. 


A B.. 

against  J  Justice's  Court. 

C D.. 


852  COURTS- JUSTICES.  [Chap.  22. 

[No.  13.] 
ATTACHMENT  TO  ENFORCE  OBEDIENCE  TO  ABOVE  ORDER. 

!• 

Slate  of  North  Csirolina,  to  any  constable  or  other  lawful  officer  of 

county,  GREETING :  

Whkueas,    it  appears  that  H.  B.  w.is  duly  served  on  the  day  of 

;. ;  •  •  '*'■  •■  ^^'."i   '^?,  order  issued  by  G.  W.  II.,  Esq..  one  of  our  ius- 

tices  of  tbepenne  for  said  county,  requiring  said  H.  R.  toatteud  befoie  said 

justice  at  Ins  offlce,  in  s:iid  county,  on  the day  of  18        iind 

be  examined   on   oath   concerning  a  certain  debt  owing 'to  Vlie  defendant 

named  ,n  the  above  action,  by  tlie  said  H.  B.  (or  property  held  by  the  said 

.    J  ■'         oeuefit  of  the  defendant,  or  otherwise,  as  tlie  case  niay  be) 

And  whereas,  the  said  H.  B.,  in  contempt  of  said  order,  has  refused  or 
neglected,  and  doth  slill  refuse  or  neglect,  to  appear  and  be  examined  on 
oatli,  as  in  said  order  he  is  required  to  do; 

Now,  therefore;  we  command  yon  iha't  you  forthwith  attach  the  said  H 
B.,  so  as  to  have  his  body  before  G.  W.  H..  Esq.,  one  of  our  iustices  of  the 

peace  for  your  county,  on  the  ....  day   of 18. .,  at   his  office  in 

said  county,  then  and  there  to  answer,  touching  the  fontempt  which  he  as 
IS  alleged,  hath  committed  aiiainst  our  aiuhorily;  and  further  to  perform 
and  alude  l>y  such  order  as  our  said  justice  sUall  make  in  his  behalf  And 
have  you  then  and  there  this  writ,  with  a  return,  under  your  baud  of  vour 
proceedings  thereon.  ''  ",  »*ijuu. 

Hereof,  fail  not  at  your  peril. 

Witness,  our  said  justice,  this day  of 18 

Q.'wi'n. .'.'.' 

Justice  of  tlie  Peace. 
[No.   14.] 

UNDERTAKING  ON  DISCHARGE  OP    ATTACHMENT. 
(Title  of  the  Cause  as  in  No.  3.) 

Wherkas,  the  property  of  the  above  named  C.  D.  has  been  attached 
and  the  defendant  desires  a  discharge  of  said  attachment  on  civin"-  security 
according  to  law.  ^        ,s  a^^.^ll^,y 

Now.    therefore,  wc,  B.  B.,  of county,  and  D   D    of 

county,  undertake  in  the  sum  of....  dollars,  (the  sum  named  must  be  "at 
leastdoub  e  the  amount  claimed  by  plaintiff,)  ihat  if  the  said  attachment  be 
discharged,  we  will  pay  to  the  plaintiflf,  on  demand,  the  amount  of  the 
judgment  tliat  may  be  recovered  ag.-iiust  the  defendant  in  this  action 

Dated  this day  of ,18  ... 

(Signed) 


B.  B. 
D.D. 


ACECNOWLEDGMENT  AND  AFFfDAVIT  OF  SURETIES. 

County  of 

On  this.    ...  .day  of .         18 before   me  personailv 

appeared  the  above  named  B.  B.  and  D.  D.,  known  to  me  to  be  the  persons 


Chap.  22.]  COURTS-JUSTICES.  '  353 

described  in,  Hud  who  executed  the  above  undertaking,  and  severally  ac- 
knowledged thaUhey  executed  the  same  ,^orn.each  for  himself, 
safsfh^tTu^l^'a^elde^foY^h^st^tt^^Nonf Carolina:  and  a.ou.^^^^ 

(or  freeholder)  therein.  g  g     

d'.  D 

Sworn  to  and  subscribed  the  day  above  written  ^'^o'-e  ™^  ^ 

justice  of  the  Peace. 

[No.    15.] 
ORDER  VACATING  ATTACHMENT  ON  SECURITY  BEING   GIVEN. 


A B 


against  '"        >  Justice's  Court. 
...  D ) 


C " '  County  of \----y--l" 

The  defendant  having  appeared  '»  t^'^, -^f/^^^^^^ 
1^0  tife'fotr^  rnlenafinrin  ^^ue  S^of  Tatf  S  bas  beei  duly  ap- 

^If^nd^^^tis^^ek^S^rl^ninallr^^^^ 

Sid  and  delivered  \o  the  said  defendant  or  his  agent. 

Dated  this  day  ot i»---         q.w.  H 

'  Justice  of  the  Peace. 

[No.  16.] 

FORM  OF  PUBLICATION  TO  BE  MADE  BY  PLAINTIFF  IN  ATTACH- 
MENT. 

A        B ) 

agaimt  >  Attachment. 

''s;;;n;y-fiv'e'  doliars  due  by  -te,  (or  otherwise  as  the  fact  may  be  )W^^^^ 
.antof  at-aohmentretm-naWe^^^^^^^^^^  ,^,  ,P    , 

'Vdayof!.:,  18  -when  and  where  the  defendant  is  required  to 
appear  and  answer  the  complaint 

Dated  this. . .  .day  of 18. . . .  ^^ Plaintiff. 

[No.  lY.] 

AFFIDAVIT     FOR     ARREST     ON    DEBT    FRAUDULENTLY     CON- 
TRACTED. 

A B ) 

against  V  County  of 

^A*  b'  '  plaintiff'  above  named,  being  duly  sworn,  deposes  and  says: 
t  That  the  defendant  C.  D.  is  indebted  to  the  plaintiff  in  the  sum  of 


354  COURTS— JUSTICES.  [Chap.  22. 

dollars  on  an  inland  bill  of  exchange,  drawn  on  the dny  of 

18 by   defendant  on  the  First  National  Bank  of  Charlotte 

North  Carolina,  payable  at  sight  to  the  order  of  plaintiff; 

2.  That  on  the. ..  .day    of 18 ,    the  defendant   applied    to 

the  plaintiff  lo  purchase  a  bill  of  goods  amounting  to dollars,  which 

the  plaintiff  offered  to  Pell  to  the  defendant  for  cash;  tliat  the  defendant, 
contriving  to  defraud  the  plaintiff,  represented  that  he  had  money  on  de- 
posit at  said  National  Bank  for  more  than  the  amount  of  the  proposed  pur- 
chase, and  offered  to  give  plaintiff  a  si^'ht  draft  on  said  bank;  that  the 
plaintiff,  relying  upon  the  representations  of  the  said  defendant,  anil  solely 
induced  thereby,  sold  and  delivered  a  bill  of  goods  amoimling  to 
dollars  to  the  defendant,  who  thereupon  drew  the  sight  order  on  said  bank 

above  refen-ed  to;  that  on  the day  of  18 ,   the  plaintiff 

presented  said  draft  at  said  bank  for  acceptance,  when  the  same  was  not 
accepted  for  want  of  any  funds  in  said  bank  to  the  credit  of  the  defendant; 
that  nolice  of  non-ncceptance  was  given  to  the  defendant,  who  has  wholly 
refused  to  pay  the  draft  or  any  part  thereof  ;  that  the  representations  made 
as  aforesaid  by  the  defendant  were,  and  each  and  every  of  them  was,  as 
deponeiit  is  informed  and  believes,  untrue;  and  that  the  defendant,  as'de- 
poneut  is  informed  and  believes,  did  not  have,  nor  expect  to  have,  any  funds 
on  deposit  at  said  bank,  at  the  mnking  of  the  representations  above  men- 
tioned, but  said  defendant  was  then  and  is  now  wholly  insolvent 

A,  B 

Sworn  to  and  subscribed  before  me,  this  ....  day  of 18 

G.  W.  H 

Justice  of  Vie  Peace. 
[No.  18.1 

UNDERTAKING  ON  ARREST. 

A B 1 

againsl  >•  County  of 

C D ) 

Whereas,  the  plaintiff  above  named  is  about  to  apply  (or,  has  applied)  for 
an  order  to  arrest  the  defendant,  C.  D.  : 

Now,  therefore,  we,  J.  J.,  of  county,  and  P.  P.,  of 

county,  imdcrtake  in  the  .sum  of dollars  (llie  sum  must  be  at  least 

one  hundred  dollars),  that  if  the  said  defendant  recover  judgment  in  this 
action,  the  plaintiff  will  pay  all  costs  that  may  be  awarded  to  the  said  de- 
fendant, and  all  damages  which  he  may  sustain  by  reason  of  his  arrest  In 
this  action. 

J.. I 

P.  P 

Signed  in  my  presence,  this day  of ,  18. .. . 

G.  w.  n 

Justice  of  tlie  Peace. 
[No.  19.] 

ORDER  OF  ARREST. 

A B ) 

against  \  Justice's  Court. 

C D ) 

North  Catiolika, 

County  of 

To  any  constable  or  other  lawful  officer  of  said  county  : 


CHAP.  22.]  COUKTS-JUSTICES.  3»B 

Dated  this  ....  day  of G   W.  H 

' Justice  of  ilie  Peace. 

[No.  20.] 

UNDERTAKING  OF  BAIL  ON  ARREST. 

A B ) 

against  VCountyof 

^  WhereS' the  above-named  defendant.  C.  D.,  has  been  arrested  in  this 

action:  „„  -n    r    nf  county  (tailor),  and  D.  D.,  of 

Now.  ^'-^:^;;^^-d^^^:<^.  II  of.!'.   .  dollars 

(<^es;:n;-s,;o^a£L^an.a^>nen^ 

rnaWe'totI;  t^o^^^'s  ^oTthe^'^rt'during  the  pendency  of  this  action. 
andJo  such  as  .nay  be  issued  to  enforce  judgment  therem. 

D.T).'.'.'.'.". 

Signed  in  my  presence,  this day  ot.  .^  -^  ■ ; ;  •^^•;;_ 

Justice  of  the  Peace. 
[No.  21.] 

NOTICE  OF  EXCEPTION  TO  BAIL. 


A B.. 

against 


C D ) 

Tn  O   P  M    constable  (or  sheriff)  of  the  county  of. . . .......... ...  • 

T^ikenoiice  that  the  plaintiff  does  not  accept  the  bad  offered  by  the 
:,  J^^^^^n  thi<,  art  on  (and  if  the  undertaking  is  defective  in  form  or 
othS,  add  a'fso)!  and  'furler  he  excepts  to  tl.'e  form  and  sufficiency  of 

the  undertaking^^  ^  ^ p,^,.„^,y^ 

(or  M.'  W.  N ,  Attorney  for  Plaintiff). 

Dated  this day  of 18.  •  • 

[No.  22.] 

NOTICE  OF  JUSTIFICATION  OF  BAIL 

A  B ) 

against  \  County  of 

C D )  .^ 

To  A   B..  plaintiff  (or  M.  W.  N.,  attorney  for  plamtifl):  „  tv  H 

Take  iiotice,  that  the  bail  in  this  action  will  justify  before  G.  W.  H.. 


356  COURTS— JUSTICES.  [Chap.  22. 

Esq.,  a  justice  of  the  peace  for  said  county,  at  the  office  of  said  iustice  in 

said  county,  on  the day  of ,18 

C.  D 

_  .   ,   ^.  ^        ,  (or  attorney  for  C.  D.),  i)f/«n<ton<. 

Dated  this day  of .,18... 


[No.  23.] 

NOTICE  OF  OTHER  BAIL. 
(Title,  &c.,  as  in  last  form). 

Take  notice,  that  R.  S.,  of county  (physician),  and  T.  T., 

of county  (farmer),  are  proposed  as  bail,  m  addition  to  (or  in 

place  of)  B.    B.   and  D.  D.,  the  bail  already  put  in;  and  that  they  will 
justify  (conclude  as  in  last  form).     Date,  &c. 

[No.  2i.] 

JUSTIFICATION  OF  BAIL, 

A B ) 

against  J-  Justice's  court. 

c b ) 

County  of 

On  this day  of ,  18. .,  before  G.  W.  H.,  Esq. ,  a  justice 

of  the  peace  for  said  county,  personally  appeared  B.  B.  and  D.  D.,  (or  R  S 
and  Y.  Y.,  aa  the  case  maybe,)  the  bail  given  by  the  defendant  CD.,  in  this 
action,  for  the  purpose  of  justifying  pursuant  to  notice;  and  the  said  B.  B. 
being  duly  sworn,  says:  '     '' 

1.  That  he  is  a  resilient  and  householder  (or  freeholder)  in  this  state; 

2.  That  he  is  worth  the  sum  of dollars,  (the  amount  specified  in 

the  order  of  arrest.)  exclusive  of  property  exempt  from  execution. 

And  the  said  D.  D.,  being  duly  sworn,  says: 

(As  with  the  other  bail.) 

(And  so  on,  with  each  bail  offered.) 

.      .  [Signatures  of  bail.] 

Examination  taken  and  sworn  to  before  me,  this  . .   .      day  of 

18....  ^       

G.  W.H , 

Justice  of  the  Peace, 
[No.   25.] 

ALLOWANCE  OF  BAIL. 

A B. 

against  J  Justice's  court. 


C D. 

County  of 

The  bail  of  the  defendant,  C.  D.,  within   mentioned,  Imving  appeared 
before  me  and  justified,  I  do  find  the  said  bail  8ufl3cient  and  allow  the  same 

Dated  this day  of ,18 

G.  W.  H 

Justice  of  the  Peace. 


Chap.  22.]  COURTS-JUSTICES.  357 

[No.   26.] 

SUBPCENA  TO   TESTIFY. 

STATE  OF  NORTH  CAROLINA,         ) 

Oiunty.    ) 

Xo  S.  T Greeting:  (The  Justice  may  insert  any  number  of  necessary 

names  ) 
Tou  (and  each  of  you)    are   commanded  to  appear  personally  before 
G  W  H    Esq     a  iustice  of  the  peace  for  said  coui^ty,  at  his  othce  m  said 

county,  on   the' ....  day  of 18. ....  to  give  evidence  in  a  certam 

civil  action,  now  pending  before  said  justice,  and  then  and  theie  to  be 
tried  between  A.  B.,  plaintiff,  and  C.  D.,  defendant,  on  the  part  of  the 
defendant  (or  plaintiff.)*    Hereof  fail  not,  under  the  penalty  prescribed  by 

law     Witness  our  said  justice,  this day  of ,  lo. . 

G.  W.  H , 

Justice  of  the  Peace. 

[No.  27.] 

N  B.— The  justice  may,  instead  of  a  formal  subpoena, 
indorse  on  the  summons  or  other  process  an  order  for 
witnesses,  substantially  as  follows: 

"  The  officer  to  whom  the  within  process  is  directed  will   summon  the 

following  persons  as  witnesses  for  the  plaintiff: •  • ;  and  tlie 

foUowini  as  witnesses  for  the  defendant: .....;  and  will  notify 

all  such  witnesses  to  appearand  testify  at  the  time  and  place  withm  named 
for  the  return  of  this  process. 

Dated  ....  day  of 18...  q  w  H , 

Justice  of  the  Peace. 
[No.  28.] 

SUBPOENA  DtrCES   TECDH. 

If  any  witness  has  a  paper  or  document,  which  a  party 
desires  as  evidence  at  the  trial,  the  justice  will  pursue 
the  form  number  26  as  far  down  as  the  asterisk'' ;  and  then 
add  the  following  clause: 

'■And  you  S  T  are  also  commanded  to  bring  with  you  and  there  pro- 
duce as  evidence  a 'certain  bond  (describe  particularly)  which  is  now  m 
vour  possession  or  underyour  control,  together  with  all  papers,  dociiments, 
writings  or  instruments  in  your  custody,  or  under  your  control.  (Oun- 
clude  as  in  form  number  26.) 

[No.  29.] 

FORM  OF  OATH  TO   WITNESS. 

You  swear  that  the  evidence  you  will  give  as  to  the  matters  in  difference 
between  A.  B.,  plaintiff,  and  C.  D.,  defendant,  shall  be  the  truth,  tlie 
whole  truth,  and  nothing  but  the  truth.     So  help  you,  God. 


858  COUETS— JUSTICES.  [Chap.  22. 

[No.  30.] 
PnOCEEDINGS  AGAINST  DEFAULTING   WITNESS. 

When  a  witness,  under  subpoena,  fails  to  attend,  the 
justice  will  note  the  fact  in  his  docket  by  some  such  en- 
try as  the  following: 

^  ','^J  ,?■'   **  ■<\'itoes3  summoned  on  behalf  of  tlie  plaintiff,  called    and 
failed. 

If  the  party,  who  suffers  by  default  of  tlie  witness, 
wishes  to  move  for  the  penalty  against  him,  he  will 
serve  substantially  the  following  notice  on  the  witness: 

A B ) 

against  [-County  of 


To  R.  P. : 

Take  notice,  that  on  the     .  .day  of 18. .,  the  plaintiff  in  the 

above  acliou  will  move  G.  W.  H.,  Esq.,   the  justice  bifoio  whom  the  trial 

of  said  action  was  had,  on  the  . .  .day  of 18...foi-  judgment 

against  you  for  the  sum  of dollars,  forfeited  by  reason  of  your  fail- 
ure to  app-;ar  and  give  evidence  on  said  trial  as  you  were  summoned  to 

Dated  this day  of ,  18. . 

A.B 

PlaitvUff, 

The  justice  will  enter  the  proceedings  on  the  foregoino- 
notice  on  his  docket  as  follows: 

-^ B •  •  )  Justice's  Court. 

against  h  Motion  for  penalty  against  R.  P.,  defaulting  witness. 

day  of  .... . . .,  18 A.  B.,  above-named,  appears,  and,  accordln? 

to  a  notice  hied  and  duly  served  on  R.  P.,  moved  for  tlio  penalty  of 
dollars  torfrited  by  tlie  said  R.  P.  by  reason  of  his   failure  to  attend  "and 
give  evidence  on  the  trial  of  a  cause,  wherein  A.  B.  was  plaintiff  aud  C  D 
was  defendant,  tried  before  me  at  my  office  on  the day  of 

■'^•"j'TrT^''r''"^''™'^"  "^'"""^'''"'y  "'"''"^  o"  my  docket;  when  and  wiiere'lho 
said  R  P.,  a  witness  summoned  on  the  part  of  the  plaintiff  in  that  action 
was  c  died  and  did  fail. 

R.  P.  appears  and  assigns  for  excuse  "high  water,"  and  offers  his  own  affi- 
davit, which  is  filed,  lie  also  offers  as  a  witness  in  his  behalf  S  S  who 
being  duly  sworn,  testifies  that  (state  what  S.  S.  says  about  the  condilioii 
ot  the  water  at  the  time).  R.  P.,  Jiavine  no  other  evidence,  closed  the  case 
on  his  part.  \Vhereu|>on  A.  B.  offered  M.  Y.  as  a  witness,  who  betnir 
sworn,  lestifies  (slate  what  witness  says). 

Neither  party  having  any  other  evidence,  and  after 
heai mg  all  the  proofs  and  allegations  submitted  for  and 
against  the  motion: 

It   is  adjudged,  on   motion  of  A.  B.,  that  A.  B.  do  recover  of  R  P  the 

the  sum  of dollars,  penally  forfeited  by  re^ison  of  the  premises,  and 

the  further  sum  of dollars,  costs  of  this  motion. 


Chap.  22.]  COURTS-JUSTICES.  859 

[No.  31.] 

FORM  OF  A  VENIRE, 

The  justice  will  make  a  list  of  the  persons  drawn  by 
him  as  jurors,  and  indorse  thereon  substantially  as  fol- 
lows: 
To  O   P.  M.,  constable  of county: 

You  iirc  horeljy  directed  to  summon  the  persons  named  -withm  to  appear 

as  iurors  before  me  at  my  oflice.  in  your  county,  on  the day  of  .      . 

for  trial  of  a  civil  action  now  pending  between  A.  B.,  plamtift, 
and  C.'t).,  d'  fendant,  then  and  there  to  be  tried.  And  have  you  then  and 
there  the  names  of  the  jurors  you  shall  summon,  with  this  precept. 

Dated  this day  of 18..  „   w  tt 

G.  w.  n , 

Justice  of  the  Peace. 
[No.  32.] 

FORM  OF  juror's  OATH. 

Tou  swear  well  and  truly  to  try  the  matter  in  difference  between  A.  B., 
plaintiff,  and  C.  D.,  defendant,  and  a  verdict  to  give  thereon  according  to 
the  evidence  in  the  cause.     So  help  you,  God. 

[No.  33.] 

FORM  OP  OATH  TO  CONSTABLE    Df    CHARGE  OF    THE  JURY. 

Yon  swear  that  you  will,  to  the  utmost  of  your  ability,  keep  the  persons 
sworn  as  iurors  on  i  his  trial  toffelher,  in  some  private  and  convenient  place, 
without  any  mi-al  or  drink,  except  such  as  may  be  ordered  I. y  the  court; 
that  you  will  not  suffer  any  communication,  orally  or  otherwise,  to  be 
made  to  them;  and  that  you  will  not  communicate  with  them  yourself, 
orally  or  otherwise,  unless  by  order  of  the  court.     So  help  you,  God. 

[No.   34.] 
SUMMONS   AGAINST  DEFAULTING  JUROR  TO  SHOW  CAUSE. 

State  of  North  Carolina,  to  any  constable  or  other  lawful  officer  of 

county,  greeting: 
We  command  you  to  summon  R.  S.  to  appear  before  G.  W.  H.,  Esq^ 

a  justice  of  the  peace  for  your  county,  at  liis  ofBce  in  said  county,  on 

(Ja,y  of 18. .,  to  show  cause  why  he,  the  said  R.  S.,  should  not  be 

fined   according  to  law,  for  his  non  attendance  as  a  juror  before  our  said 

justice,   at  his  office  in  said  county,  on  the day  of 18..,iua 

certain  cause  then  and  tlicre  pending,  in  which  A.  B.  was  plaintiff,  and 
C.  D.  was  defendant ;  and  have  you  then  and  there  this  precept,  with  the 
date  and  manner  of  your  service  thereof. 

Witncsa,  our  said  justice,  this  . .  .day  of 18. . 

G.  W.  H 

Justice  of  tlu  Peace. 


858  COUETS— JUSTICES.  [Chap.  22. 

[No.  30.] 

PROCEEDINGS  AGAINST  DEFAULTING  WITNESS. 

When  a  witness,  under  subpoena,  fails  to  attend,  the 
justice  will  note  the  fact  in  his  docket  by  some  such  en- 
try as  the  following: 

jy  'l^J  if-'   *  ■"fitness  summoned  on  behalf  of  the  plaintiff,  called    and 
failed. 

If  the  party,  who  suffers  by  default  of  the  witness, 
wishes  to  move  for  the  penalty  against  him,  he  will 
S£rve  substantially  the  foUowing  notice  on  the  witness: 

.  A B  ) 

against  V  County  of 

To  R.  P. : 

Take  notice,  that  on  the       .day  of 18. .,  the  plaintiff  in  the 

above  action  will  move  G.  W.  H.,  Esq.,   the  justice  bifoic  whom  the  trial 

of  said  action  was  had,  on  the     .  .day  of ,  18. .    for  iudo-ment 

against  you  for  the  sum  of dollars,  forfeited  by  reason  of  your  fail- 
ure to  appear  and  give  evidence  on  said  trial  as  you  were  summoned  to 

Dated  this. . .  .day  of ,  18. . 

A.B 

Plaintiff. 

The  justice  will  enter  the  proceedings  on  the  foregoin<'' 
notice  on  his  docket  as  foUows:  *' 

affamsi  i  Motion  for  penalty  against  R.  P.,  defaulting  witness. 

day  of     ....       18 A.  B.,  above-named,  appears,  and,  according 

to  a  notice  hied  and  duly  served  on  R.  P..  moved  for  the  peualty  of 
dollars  forfdted  by  tlie  said  R.  P.  by  reason  of  his   failure   to  attend  and 
give  evulence  on  the  trial  of  a  cause,  wherein  A.  B.  was  plaintiff  and  C  D 
was  defendant,  tried  before  me  at  my  office  on  the day  of 

■^^■j'Tf^T;'^''P'^'"'''''" '^°"'y^'"'y  """^'^  0°  my  docket;  when  and  wiiere'the 
said  R  P  ,  a  witness  summoned  on  the  part  of  the  plaintiff  in  that  action 
was  c  died  and  did  fail. 

R.  P.  appears  and  assigns  for  excuse  -'high  water,"  and  offers  his  own  affi- 
davit, which  is  filed.  He  also  offers  as  a  witness  ill  his  behalf  S  8  who 
being  duly  sworn,  testifies  that  (state  what  S.  8.  says  about  the  condilioa 
ot  tUe  water  at  the  time).  R.  P.,  liavine  no  other  evidence,  closed  the  case 
on  his  part.  Whereupon  A.  B.  offered  M.  Y.  as  a  witness,  who,  beintr 
sworn,  testifies  (slate  what  witness  says). 

Neither  party  having  any  other  e^adence,  and  after 
hearmg  all  the  proofs  and  allegations  submitted  for  and 
against  the  motion: 

It   is  adjudged,  on   motion  of  A.  B.,  that  A.  B.  do  recover  of  R  P  the 

the  sum  of dollars,  penalty  forfeited  by  renson  of  the  premises,  and 

the  further  sum  of dollars,  costs  of  this  motion. 


Chap.  22.]  COURTS— JUSTICES.  359 

[No.  31.] 

FORM  OF  A  VENIRE, 

The  justice  will  make  a  list  of  the  persons  drawn  by 
him  as  jurors,  and  indorse  thereon  substantially  as  fol- 
lows: 

To  O.  P.  M.,  constable  of county:  ...    , 

You  arc  hereliy  directed  to  summon  the  persons  named  withm  to  appear 
as  iurors  before  me  at  my  offlce,  in  your  county,  on  the  .....  -day  of  . . 

for  trial  of  a  civil  action  now  pending  between  A.  B.,  plamtitt, 
and  C  "D.,  defendant,  then  and  there  to  be  tried.  And  liave  you  then  and 
there  the  names  of  the  jurors  you  shall  summon,  -with  this  precept. 

Dated  this day  of 18..  ^   .^  _ 

G.  W .  H 

Justice  of  the  Peace. 

[No.  32.] 

FORM  OF  juror's  OATH. 

Tou  swear  well  and  truly  to  try  the  matter  in  difference  between  A.  B., 
plaintiff,  and  C.  D.,  defendant,  and  a  verdict  to  give  thereon  according  to 
the  evidence  in  the  cauise.     So  help  you,  God. 

[No.  33.] 
FORM  OF  OATH  TO  CONSTABLE    IN    CHARGE  OF    THE  JURY. 

You  swear  that  you  will,  to  the  utmost  of  your  ability,  keep  the  persons 
sworn  as  jurors  on  ihis  trial  together,  in  some  private  and  convenient  place, 
without  any  mpat  or  drink,  except  such  as  may  be  ordered  l>y  the  court; 
that  you  will  not  suffer  any  coriimunication,  orally  or  otherwise,  to  be 
made  10  them;  and  that  you  will  not  communicate  with  them  yourself, 
orally  or  otherwise,  unless  by  order  of  the  court.     So  help  you,  God. 

'[No.    34.] 
SUMMONS  AGAINST  DEFAULTING  JUROR  TO  SHOW  CAUSE. 

State  of  North  Carolina,  to  any  constable  or  other  lawful  officer  of 

county,  greeting: 
We  command  you  to  summon  R.  S.  to  appear  before  G.  W.  H.,  Esq^ 

a  justice  of  the  peace  for  your  county,  at  bis  ofBce  in  said  county,  on 

day  of 18. .,  to  show  cause  why  lie,  tlie  said  R.  S.,  should  not  be 

fined   according'to  law,  for  his  non  attendance  as  a  juror  before  our  said 

justice,   at  his  office  in  said  counly,  on  the day  of 18..,  in  a 

certain' cause  then  and  llieie  pending,  in  wliich  A.  B.  was  plaintiff,  and 
C.  D.  was  defendant;  and  have  you  then  and  there  this  precept,  with  the 
date  and  manner  of  your  service  thereof. 

Witness,  our  said  justice,  this  . .  .day  of ,  18. . 

G.  W.  H 

Justice  of  the  Peace. 


360  COURTS— JUSTICES.  [Chap.  22. 

[No.  35.] 

DEMtTRREB  TO  COMPLAINT. 

A B ) 

ar/ainst  }■  Justice's  court. 

C D ) 

County  of 

Tlie  defendant  demurs  to  the  complaint  in  this  action,  for  that  tlie  said 
complaint  does  not  state  facts  sufficient  to  constitute  a  cause  of  action,  (or, 
for  that  the  said  complaint  is  not  sufficiently  explicit  to  enable  this  defendant 
to  understand  it.)  (Signature  of  defendant  or  defendant's  attorney.) 


[No.  36.1 

DEMURRER  TO  ANSWER. 
(Title  as  above.) 

The  plaintiff  demurs  to  the  answer  of  tlie  defendant,  lor  thai,  the  facts 
stated  in  the  answer  are  col  legally  sufficient  to  constitute  a  defence  to  this 
action,  (or  for  that  the  said  answer  is  not  sufficiently  explicit  to  make  this 
plaintiff  understand  it.)      (Signature  of  plaintiff  or  plaintiff's  attorney.) 


•  [No.  37.] 
JUDGMENT  UPON  DEMURRER. 

Note. — If  the  justice  thinks  the  objection  raised  by  the 
demurrer  to  the  pleadings  is  well  founded,  he  will  make 
this  entry  ou  his  docket  : 

"Demurrer  to  the  complaint  (orto  the  answer)  filed,  lieard  and  sustained; 
and.  whereupon,  it  is  ordered  that  the  said  pleading  be  amended  without 
cost,"  (or  upon  payment  of  costs,  as  tlie  case  may  be.) 

This  order  to  amend  the  defective  pleading  is  a  matter 
of  course,  and  is  the  only  judgment  which  the  justice  can 
render  upon  demurrer.  He  cannot  give  a  final  judgment 
in  the  cause  at  this  stage,  for  the  party  may  clioose  to 
amend  in  his  pleadings  and  try  the  case  on  the  facts.  If, 
however,  the  party  refuse  to  amend  the  defective  plead- 
ing, the  justice  will  disregard  the  same,  and  proceed  to 
render  final  judgment,  as  foUows  : 

"  The  plaintifif  (or  defendant)  having  refused  to  amend  his  complaint  (or 
his  answer)  demurred  to,  it  is  adjudged  that  the  defendant  go  without  day 

and  recover  of  the  plaintiff  the  sum  of dollars,  costs  of  this  action," 

(or  that  the  plaintiff  recover  of  the  defendant  the  sum  of dollars, 

damages,  and  the  further  sum  of dollars,  costs  of  this  action.) 


Chap.  22.]  COUETS-JUSTICES.  361 

If  the  justice  deem  the  objection,  raised  by  the  dem^rref , 
not  well  founded,  he  will  enter  in  his  docket  as  foUows  . 

-  Demurrer  to  the  complaint  (or  to  the  answer)  filed,  beard  and  overruled;" 
and  he  will  then  proceed  to  the  evidence  in  the  cause. 


[No.  38.] 

Note  -The  following  is  offered  as  a  general  precedent  of  the  manner  in 
vfhich  the  justice  will  make  the  entries  in  his  docHet: 

against [.  Justice's  court. 

C D ) 

18..  Summons  issued;   returnable  on  the  ....  instant  at  ray 

°®''^'  18      Summons  returned,  served  on  defendant  by  O.  P.  M.,  con- 

stable 'on' the    : .    instunt.  both  parties  appear,  the  plaintiff  m  person,  the 

''i-iSn'.^.^cJilip^inf  oVatSsory  note  execnt^^^ 

toliim  dited  18...  payable  one  day  after  date  for  f. ...  ana 

l^sof^r  goods,"  soid  and  delivered  to'  the  defendant,  and  claims  damages 

%hcd'efendant  answers  and  denies  each  and  every  allegation  in  the  com- 
TiHint  and  claims  a  set  off  of  $....  for  wood  sold  and  debvered  to  the 
nWntiff  anda^oof  $  ...  for  work  and  labor  performed  for  the  plaintiff. 
^  On  S'inin..  issue  o*f  fact  as  above,  the  action  is,  by  consent  of  parties. 

^tri^'l^S^-i;-^dt?thepl"^t!^(or  defendant's)  demand,  return- 
able  at  the  time  and  place  l-t  men Jnejl.  ^^^^  ^^^^^^^  ^^  ^^^         ,  ^^ 

cause'  Thefoilowiiig  jurors  are  returned  as  summoned  upon  the  ^emre  by 
cause.  ^^^''^"^"^^i/JdQ.ert  the  names  of  all  jurors  summoned.)  The 
?ollowinViu"o°s  who  are  returned  as  summoned,  do  not  appear.  (In.sert 
tbei°T°me"  The  followini;  jurors  appear  according  to  the  summons. 
(Insert  Uieir  names.)    The  following  jurors  are  sworn  to  try  the  action. 

^"'^"p'SdTM!' witnesses  for  the  plaintiff,  and  W  F.,  a  witness  for  the 
defendant  are  sworn  and  testify;  J.  S..  a  witness  on  the  part  ot  the  defend- 
ant I  ofle.^d.  but  objected  to  by  the  plaintiff  on  the  ground,  (state  the 

^Xv1^g7iea7itlie  evidence,  (and  the.arg.ments  of  counsel  if  any^)t.je 
cause  is  submitted  to  the  jury,  who  relire,  under  charge  of  O.  P.  M..  a  con- 
stable duv  sworn  for  that  purpose,  and  afterwards  return  into  ope"  ^o  "-t 
and  publicly  deliver  their  verdict,  by  which  they  find  in  favor  of  the 
pHinl^ff  f<^  i     ■  damages;  whereupon.  I  adjudge  that  the  plaintiff  do  re- 


Pl 

cover  of  the  defendant — 

Damages ^  . . . 

^.°'!!;;'.,"  18.  .■  Execution  Vssued  for  above '  judgment  'to  O.  V.  M..  con- 

^'"^'.'^; 18. .  Notice  of  appeal  served  on  me  by  defendant;  my  fee  paid 

and  return  to  the  appeal  made  by  mo. 

NB— Ifthe  action  is  tried  by  the  justice  without  a 
jury,  all  that  relates  to  the  venire  and  the  verdict  in  the 

16 


362  COURTS— JUSTICES.  [Chap.  22. 

above  form  must  be  left  out,  and  the  judgment  will  1)6 
entered  as  follows: 

"After  hearing  the  proofs  and  nllegatious  o£  the  respective   parties.  I  do 
adjudge  that  the  pUiiutifl  recover,"  &c.,  (as  above.) 


[No.  39.] 

FORM  OF  NOTICE  OF  APPEAL  TO  THE  SUPERIOR  COURT, 
WHERE  A  NEW  TRIAL  OP  THE  WHOLE  MATTER  LS  TO 
BE    HAD. 

A  B ) 

against  [  .Justice's  court. 

C D ) 

County  01 

To  G.  W.  H. ,  Esq. ,  a  justice  of  the  peace  for  said  county. 

Take    notice,    that    the    defendant   in   the  above  action  appeals  to  the 

Superior  Court  from  the  judgment  rendered  therein  by  you  on  the 

day  of 18..,  in  favor  of  the  phiintifE  for  the  sum  of  .sixty-five 

dollars  damages,  and  the  further  sum  of  three  dollars  and  seventy  five 
cents,  costs,  and  that  this  appeal  is  founded  upon  the  ground  that  the  said 
judgment  is  contrary  to  law  and  evidence. 

Dated  this day  of 18. . 

W.  W 

Attorney  for  Appel{a,ni. 


[No.  40.] 

RETURN   TO   NOTICE   OF   APPEAL   LIKE  THE   FOREGOING. 

A B ) 

against  \  County  of 

C  D ) 

To  the  Superior  Court  of County: 

An  appeal  having  been  taken' in  this  action  by  the  defendant,  I,  G.  W. 
H.,  the  justice  before  whom  the  same  was  tried,  in  pursuance  of  ihc  no- 
lice  of  appeal  hereto  annexed,  do  hereby  certify  and  return  that  the  follow- 
ing proceedings  were  had  by  and  before  me  in  said  action: 

On  the  first  of  February,  "one  thousand  eight  hundred  and  sixty  nine,  at 
the  request  of  the  plaintiff,  I  issued  a  summons  in  his  favor  and  against 
the  defendant,  which  is  herewith  sent.  Said  summons  was.  on  the  return 
(lay  thereof,  returned  before  meat  my  office;  and  at  the  same  time  and 
place,  the  parties  personally  appeared.  j  ,      ,     .  . 

The  plaintiff  complained  for  goods  sold  and  delivered  to  defendant  to 
tlie  amount  of  $7.").  The  defendant  denied  the  right  of  the  plaintiff  to  re- 
cover that  amount  for  the  goods,  on   the   ground   that  he  had  paid,  at  or 

shortly  after  the  purchase  of  said  goods dollars  thereon ;  and  he 

also  claimed  to  have  a  set-olT  against  the  plaintiff  to  the  amount  of  f85  for 
board  and  lodgin-i  fiiriiislied  to'^phiintiff.  and  work  and  labor  done  for  him; 
and  he  claimed  to  lie  ciilitlcd  to  jtidgment  against  the  plaintiff  for  $ 

Both  parties  introduced  evidence  upon  the  claims  ,so  made  by  Ihem,  and 
after  hearing  their  proofs  and  allegations,  I  rendered  judgment  in  favor  of 
the  plaintiff  and  against  the  defendant,  on  the  tenth  February,  eighteen 
hundred  and  sixty-nine,  for  %Qr,  damages,  and  for  the  further  sum  of  |3.75, 
costs  of  the  action. 


Chap.  22.]  COURTS-JUSTICES.  363 

-^^-TwEl^lllK  totl^^t:t!l.SSuings,  and  ot.er  pa- 

pers  in  the  cause. 

Dated  this  15th  day  of  February,  186a 

Ci.   VV .  tl 

N  B  If  tlie  cause  was  tried  by  a  jury,  state  the  fact  and  set  forth  the 
vf-rdict  with  the  iadgment  thereon.  It  is  not  necessary  to  set  out  in  the 
Return  k  copy  o?  any  process,  pleading,  aflSdavit  or  other  paper.  It  .8  suffi- 
^ent  to  lefer  to  such  a  paper  as  filed  and  as  herewith  sent. 

[No.  41.] 

WHKKE  THE   SUM   DEMANDED    EXCEEDS  TWO   HUNDRED 
DOLLARS. 

Ttacnearing  that  the  sum  demanded  by  the  plaintiff  in  this  action  ex- 
ceeds ^twoTfndrcd  dollars,  it  is  ordered  that  the  action  be  dismissed  and 
Sment  «  rendered  against  A.  B..  plainlilf.  for  the  sum  of  ... .  doUars, 
costs. 

[No.  42.] 

WHERE  THE  TITLE  TO   REAL  ESTATE   IS  IN  QUESTION. 

N  B  The  defendant,  if  he  wishes  to  make  answer  to  title,  must  file  a 
wril'ten' answer  to  the  complaint,  selling  forth  the  facts. 

ANSWER  OF  TITLE. 

A  B  ■    ) 

■  ■  "  against [  Justice's  Court. 

C D ) 

The  defendant  answers  to  the  complaint : 

1  Th'it  no  alleeatiou  ihereof  is  true.  . 

2  Tin  the  afntiff  ought  not  to  have  or  maintain  his  action  against  the 
defendant  bee  use  the  prmises  menlioned  and  described  in  the  complaint, 
ft  he  time  when  the  rent  and  render,  for  wbch  said  action  is  brought  is 
a  le^edTo  be  due  was  and  is  now  the  land  and  freehold  o  one  J.  D.  and 
noftlmt  of  the  plaintiff  ;  nor  was  the  plaintiff  then,  nor  is  he  now  entitled 
°o  the  possession  thereof ;  and  the  defendant  further  answers  that  ^e  title 
to  smW  premises  was,  at  the  lime  aforesaid,  and  .snow,  in  said  J,  D.,  and 
will  come  in  question  on  the  trial  of  this  action. 

Datedthis dayof    la. . .  ■      ^^ 

Defendant. 

It  aDoearino-  from  the  answer  and  proof  of  the  defendant,  that  the  title  to 
xea  Sri^hi  cZtroversy  in  this  action.,  ^V^ -d«edin,at  the  action  be 

dismissed,  and  judgment  is  rendered  against  the  plaintiff  for 

dollars  costs. 


364  COURTS— JUSTICES.  [Chap.  22. 

[No.  43.] 
OFFER  OF  JUDGMENT. 

A B ) 

against  J- Justice's  Court. 


C D. 

To  A.  B 

Take  notice,  tliat  the  defendant  hereby  offers  to  allow  judgment  to  be 
taken  against  him  by  the  plaintiff  in  the  above  action  for  the  sum  of  fifty 
dollars,  with  costs. 

Dated  this day  of ,18 

CD 

Defendant. 

[No.   44.] 
ACCEPTANCE  OF  OFFER  OF  JUDGMENT; 

(Title  as  above.) 

ToC.  D 

Take  notice,  that  the  plaintiff  hereby  accepts  the  offer  to  allow  the  plain- 
tiff to  take  judgment  in  the  above  action,  foi-  the  sum  of  fifty  dollars,  with 
costs,  and  the  justice  will  enter  upjudgmeut  accordingly. 

Dated  this day  of '. ,18 

A.B , 

Plaintiff. 

[No.  45.] 

FORM   OF  JUDGMENT  OR  OFFER. 

(Title  as  above.) 

N.  B. — The  justice  will  state  all  the  proceedings  in  the  action  from  the 
issuing  of  the  summons  down  to  the  appearance  of  the  parties  and  the  com- 
plaint of  the  plaintiff,  and  then  proceed  as  follows: 

Whereupon  the  said  defendant,  before  answering  said  complaint,  made 
and  served  an  offer,  in  writing,  to  allow  the  plaintiff  to  take  judgment 
against  him  for  the  sum  of  fifty  dollars  with  costs;*  and  the  said  plaintiff 
tliereupou  accepted  such  offer,  and  gave  notice  thereof  to  the  defendant  ia 
writing;  said  offer  and  acceptance  thereof  being  filed: 

JSow,  therefore,  judgment  is  accordingly  rendered  in  favor  of  the  plaintiff 
and  against  the  defendant,  for  the  sum  of  fifty  dollars  damages,  and  the 
further  sum  of  one  dollar  costs. 

If  notice  of  acceptance  is  not  given,  the  entry  will  be  as  follows: 

{Fallow  the  fore.yoinq  form  down  to  the  aHtmnk.  (*)  and  then  add): 

■'  And  (he  said  plaintiff  hiving  refused  to  accept  such  offer,  the  defend- 
ant answered  the  complaint  by  denying,"  &c.,  (state  t/ie  defence  of  the  de- 
fendant, down  to  the  judgment,  which,  incase  the  plaintiff  fails  to  recover  more 
than  the  sum  mentioned  in  the  offer,  will  be  entered  thus): 

After  hearing  the  proofs  and  allegations  of  the  respective  parties,  I  ad- 
j<idge  that  the  plaintiff  do  recover  the  sum  of  fifty  dollars  damages,  and 
the  further  sum  of  one  dollar  costs; 

I  further  adjudge  that  the  defendant  do  recover  of  the  plaintiff  the  sum 
of  two  dollars  and  seventy-five  cents,  costs  accruing  in  the  action  subse- 
quent to  the  offer  of  the  defendant  referred  to. 


Chap.  22.]  COURTS-JUSTICES.  365 

[No.  46.] 

GENERAL  FORM— EXECUTION. 

State  of  North  Carolina,  to  any  Constable  or  other  lawful  officer  of   

.....   dollars  damages,  and  the  further  sum  of  doUais  costs, 

°°Ym,  areVheVetoe  commanded,' forthwith  to  levy  of  the  goods  and  chat- 
.  ,  f  fi^^l.ffl  r  tS  fexcenlino-  such  goods  and  chattels  as  are  by  law  ex- 
Impffrom  executio^'n)  tt'rruut  of  sufh  judgment,  with  interest  from  the 
flitp  thereof  until  the  money  is  recovered.  .-,      ■■         t         4i,„ri,to 

^d   make  due  return,  according  to  law,  in  srxty  days  from  the  date 

hereof.                             ,         ,                           ift 
Dated  this day  of q    w'  H  

'jiisiice  of  the  Peace. 

[No.  47.] 

EXECUTION  IN  ATTACHMENT. 

State  of  North  Carolinia,  to  any  Constable  or  other  lawful  officer  of 

w™ls  ^n  purSance  of  a  warrant  of  attachment,  dated  the. 

\^  HEKEAS,  m  pursu.  W.  H.,  Esq.,  a  justice  of  the  pence 
teLouuiy.-in  analion  whSi'  R  wasplain%,  indC.D.  defendant 
the  following  property  of  the  defendant  was  on  the day  of 

f,  18. .,  duly  levied  on  and  attached  : 

(Here  insert  a  list  of  property.) 

And  whereas  iudgment  was  rendered  in  said  action   on  the. . . . . . ... . . . 

day  of  !!  .  .  .  .ri8. .,  in  favor  of  said  plaintiff,  and  against  the  said  de- 
fendant,'in  tiie  sum  of dollars. 

Therefore  we  command  you  that  you  satisfy  the  said  judgment  out  of 
the  property  so  attached  as  aforesaid,  by  the  sale  "^ '"^^  same  or  o  much 
thereof  as  shall  be  sufficient  to  satisfy  tliesaid  judgment;  and  if  a  sufficient 
6un^  be  not  realized  therefrom,  then  you  satisfy  the  said  judgment  out  of 
inyoiher  goods  and  chattel,  of  the  said  judgment  debtor  within  your 

''Xd  make  due  return  thereof  according  to  law  within  sixty  days  from 
the  date  hereof.                                                     j        t  IS 

Witness,  our  said  justice,  this •;••••  °^y  °^ •    °'" 

Or.  W.  11 ■ 

Jmtice  of  the  Peace. 
[No.  48.] 
RECORD   OF   CONVICTION   OF   A   CONTEMPT, 

The  iustice  will  make  an  entry  in  his  docket  stating  the  particular  cir- 
cu^LncesofThe  contempt,  of  which  the  following  is  offered  as  an  ex- 
ample  : 


366 


CO  UETS— SUPERIOR. 


[Chap.  23. 


Whereas,  on  the day  of  ,  18. .,  while  engaged 

in  the  trial  of  an  action  (or  other  judicial  act,  as  tlte  cane  may  be)  in  which 

A.  B.  was  phiintiff,  and  C.  D.  was  defendant,  at  my  office  in 

county,  M.  B.  did  wilfully  and  contemptuously  inteirupt  me.  and  did  then 
and  there  conduct  himself  so  disorderly  and  insolently  towards  me,  and  hy 
mailing  a  loud  noise  did  disturb  the  proceedings  on  said  trial  {or  ot/ter  ju- 
dicial act)  and  impair  the  respect  due  to  the  authority  of  the  law  ;  and  on 
heing  ordered  by  me  to  cease  making  such  noise  and  disturbance,  the  said 
M.  B.  refused  so  to  do,  but  on  the  contrary,  did  publicly  declare  and  with 
loud  voice  (state  wftaterer  offennce  words  tcereused),  and  whereas,  when  im- 
mediately called  upon  by  me  to  answer  for  the  said  contempt,  said  JI.  B. 
did  not  make  any  defence  thereto,  nor  excuse  himself  therefrom;  the  said 
M.  B.  is  therefore  convicted  of  the  contempt  aforesaid,  and  is  adjudged  to 
pay  a  fine  of  five  dollars  and  be  imprisoned  in  the  county  jail  for  the  term  of 
two  days,  and  until  he  pays  such  fine  or  is  duly  discharged  from  impiisou- 
ment  according  to  law. 

G.  W.  H 

Justice  of  tlie  Peace. 

[No.   49.] 
WARRANT  OF  COMMITMENT  FOR  A  CONTEMPT. 

State  of  North  Carolina,  to  the  Keeper  of  the  common  jail  of 

county.  Greeting: 
Whereas,  &c.  ,  (recite  the  record  of  conviction  so  as  to  slww  the  entire  mat- 
ter of  contempt,    together  with  the  judgment  therefor-;  and  then  proceed  a* 
follows:) 

Therefore,  3'ou  are  hereby  commanded  to  receive  the  said  M.  B.  into 
your  custody  in  the  said  jail,  and  him  there  safely  keep  during  the  said 
term  of  two  days,  and  until  he  pays  the  said  tine,  or  is  duly  discharged  ac- 
cording to  law.     Hereof  ftiil  not. 

Dated  this day  of ,  18. . 

G.  W.  H 

Justice  of  ilie  Peace. 


CHAPTER  TWENTY-THREE. 
COUETS-SUPEKIOR. 


Section. 

910.  Superior  courts;  state  divided 

into    nine    judicial    districts; 
courts,  how  opened  and  held. 

911.  Rotation  of  judges. 
913.  Notilication  of  ridings, 

913.  Special    terms;    exchange     of 

courts. 

914.  Special  terms. 

915.  Notice  to  chairman. 

916.  Powers,  &c. 


Section. 

917.  Terms  to  last,  how  long. 

918.  Certificate  of  attendance. 

919.  All  persons  bound  to  attend,  as 

at   regular   terms;  no   process 
except    subpoenas    leturnahle 
thereto. 
I  920.   Subpoenas. 

921.  Grand  juries. 

922.  Original  jurisdiction  of  superior 

court. 


Chap.  23.] 


COURTS-SUPERIOR. 


36T 


Section. 

923.  Appellate  jurisdiction. 

924.  Judge  to  take  oatlj ;  oaths  sub- 

scribed and  returned  to  secre- 
tary of  state. 

925.  Minutes  of  preceding  day  to  l;>e 

read  each  morning.  1 

926.  If  judge  of  a  superior  court  not  | 

present,  court  to  be  adjourned,  j 
when.  I 

927.  Constable  attending  juries  to  be  j 

sworn,  for  what  purpose.  | 

928.  Process  not  to  be  executed  on 

Sunday.  j 

929.  When  there  is  no  officer,  or  he 

will  not  execute  p7'0cess,  on 
affidavit,  the  clerk  shall  direct 
process  to  the  sheriff  of  adjoin- 
ing county. 

930-  When  process  to  issue  to  sheriff 
of  adjoining  county. 

931.  Sheriff  executing  process  out  of 
his  county  to  have  extra  pay. 

933.  If  defendant  in  penal  suit  plead 
former  judgment,  plaintiff 
may  reply  fraud;  release  of 
the  action  void;  defendant 
pleading  falsely  indictable. 

933.  Payment  or  satisfaction  may  be 
pleaded  in  suits  on  bond  and 
judgment;    also    payment    or 


Section. 

satisfaction  after  the  day  of 
paying;  in  suits  on  bonds  con- 
ditioned to  be  discharged  by  a 
less  sum. 
934.  In  suits  on  penal  bonds,  the  sum 
due.  interest   and  costs  being 
brought    into    court,    penalty 
shall  be  discharged. 
I  Q35.  .Judgments  to  stand  till  reversed. 
j  936.  Non-suit  not  allowed  after  ver- 
dict. 
937.  Party  in   execution   not  to  be 
I  discharged  on  liabeas  corpus. 

Death     between    verdict     and 

judgment,  not  error,  if,  &c. 
Surveys  ordered  in  case  of  dis- 
puted boundary;  how  and  by 
whom  made ;  charges  for  sur- 
veys to  be  taxed  as  costs. 
Return  on  notice;  evidence. 

941.  Speedy  collection  of  proceeds 
of  judicial  sales,  by  motion. 

942.  Purchasers  under  judicial  sales 
protected;  deemed  legal  own- 
ers. 

943.  Quakers  may  wear  hats  in  court. 

944.  Certain  cases  pending  in  courts 
of  equity  and  county  courts  to 
be  transferred. 


938. 


939. 


940. 


Sec.  OlO.  Superior  courts;  state  divided  into  nine  judicial 
districts;  courts,  bow  opened  and  lield.  Const.  Art.  IV., 
s.  10.     1876-'7,  c.  255. 

A  superior  court  shall  be  held  by  a  judge  thereof  at  the 
court  house  iu  each  county.  The  state  shall  be  divided 
into  nine  iudicial  districts,  and  the  superior  courts  m  the 
several  counties  shall  be  opened  and  held  at  the  times 
hereinafter  exoressed,  and  each  court  shall  continue  in 
session  one  week  or  more,  as  the  business  may  require 
and  this  chapter  wiU  allow,  unless  the  business  thereof 
shall  be  sooner  disposed  of,  namely: 

FIRST  JUDICIAL  DISTRICT.      1876-7,    C.    255,    S.  1.      1876-7, 
c.  288,  ss.  1,  2.     1879,  c.  20,  s.  1.     1879,  C  275,  ss.  1,  2. 

The  first  judicial  district  shall  be  composed  of  the  fol- 


3(i8  COURTS— SUPERIOR.  [Chap.  23. 

lowing  counties,  and  the  superior  courts  thereof  shall  be 
held  at  the  following  times,  to  wit: 

Currituck — First  Monday  of  March  and  September. 

Camden — Second  Monday  of  March  and  September. 

Pasquotank— ThivA  Monday  of  March  and  Se|)tember. 

Perquimans— Fomih  Monday  of  March  and  September. 

Choivan—YiYsi  Monday  after  the  fom-th  Monday  of 
March  and  September. 

Ga^es— Second  Monday  after  the  fourth  Monday  of 
March  and  September. 

Hertford— i::\\iv A  Monday  after  the  fourtli  Monday  of 
March  and  September. 

Washington— Yonvih.  Monday  after  the  fourth  Monday 
of  March  and  September. 

Tyrrell— Yiiih.  Monday  after  the  fourth  Monday  of 
March  and  September. 

Z)are— Sixth  Monday  after  the  fourth  Monday  of  March 
and  September. 

iiZ^de— Seventh  Monday  after  the  fourth  Monday  of 
March  and  September. 

Pamlico— 'Eighth  Monday  after  the  fourth  Monday  of 
March  and  September. 

Beaufort— ^m.ih  Monday  after  the  fourth  Monday  of 
March  and  September,  and  continue  two  weeks. 

ilfar^TO— Eleventh  Monday  after  the  fourth  Monday  of 
March  and  September,  and  continue  two  weeks. 

The  second  judicial  district  shall  be  composed  of  the 
following  counties,  and  the  superior  courts  thereof  shall 
be  held  at  the  following  times,  to  wit: 

Second  Judicial  District.  1876-7,  c.  255,  s.  1.  1879, 
c.  292.  1879,  c.  307.  1883,  c.  172.  1S83,  c.  361,  ss. 
1,  2. 

Tfafce— First  Monday  in  January,  second  Monday  in 
February,  fourth  Monday  in  June,  second  Monday  in 
August,  and  shall  continue  three  weeks. 

Warren— Fh-st  Monday  in  March  and  September,  and 
continue  two  weeks. 

Nort)iampton—¥om'th  Monday  after  the  first  Monday 
of  Mai-ch  and  September. 

Edgecombe— ^ixih  Monday  after  the  first  Monday  of 
March  and  September. 

Bertie— Eighth  Monday  after  the  first  Monday  of 
March  and  September.' 


Chap.  23.]  COURTS— SUPEEIOR.  369 

Halifax — Ninth  Monday  after  the  first  Monday  of 
March  and  September,  and  continue  three  weeks. 

Craven — Twelfth  Monday  after  the  first  Monday  of 
March  and  September. 

Whenever  during  any  term  of  Craven  superior  court, 
two-thirds  of  all  the  members  of  the  bar  regularly  at- 
tending the  terms  of  such  court  shall  certify  to  the  pre- 
siding judge  that  it  is  necessary  that  either  the  spring  or 
fall  term  of  such  court  should  be  continued  for  one  week 
beyond  the  time  fixed  by  law;  it  shall  be  lawful  for  such 
judge,  and  he  is  hereby  required  to  extend  the  term  of 
such  court  for  one  week  ;  and  such  judge  is  authorized 
and  empowered  to  retain  two  or  more  jurors,  and  to 
order  the  sheriff  to  summon  a  sufficient  number  of  tales- 
men to  compose  a  jury  for  such  week. 

The  third  judicial  district  shall  be  composed  of  the  fol- 
lowing counties,  and  the  superior  courts  thereof  shall  be 
held  at  the  following  times,  to  wit: 


Thied  Judicial  Distkict.     1876-7,  c.  255,  s.  1.    1881,  c. 
123.    1881,  c.  229.    1883,  c.  147 .  1883,  c.  213. 

Wayne — Fifth  Monday  before  the  first  Monday  of 
March,  and  continue  three  weeks. 

Nash — Monday  before  the  first  Monday  in  March,  and 
continue  one  week,  and  second  Monday  before  the  first 
Monday  in  September  and  continue  two  weeks. 

Wilson — First  Monday  in  March  and  continue  two 
weeks,  and  first  Monday  in  September  and  continue  one 
week. 

Pitt — Third  Monday  of  March  and  September,  and  con- 
tinue two  weeks. 

Oreene — Fourth  Monday  after  the  first  Monday  of  March 
and  September. 

Jb/(es— Fifth  Monday  after  the  first  Monday  of  March 
and  September. 

Onsloiv — Sixth  Monday  after  the  first  Monday  of  March 
and  September. 

Lenoir — Seventh  Monday  after  the  first  Monday  of 
March  and  September,  and  second  Monday  of  September. 

Carteret — Eighth  Monday  after  the  first  Monday  of 
March  and  September. 

Wayne — Ninth  Monday  after  the  first  Monday  of  March 
and  September,  and  continue  two  weeks. 

Duplin— YAeventh.  Monday  after  the  first  Monday  of 


370  COURTS— SUPERIOR.  [Chap.  23. 

March  and  September,  and  second  Monday  before  the 
first  Monday  of  March. 

Sampso7i—T\ve\U]i  Monday  after  the  first  Monday  of 
March  and  September. 

New  Hanofer— Thirteenth  Monday  after  the  first  Mon- 
day of  March  and  September,  and  continue  two  weeks. 

Pender— Fifteenth  Monday  after  the  first  Monday  of 
March  and  September. 

The  fourth  judicial  district  shall  be  composed  of  the 
following  counties,  and  the  superior  courts  thereof  shall 
be  held  at  the  following  times,  to  wit: 


Fourth  Judicial  District.     1883,  c.  408. 

Cuwi&e?-tond— Monday  before  the  last  Monday  in  Jan- 
uary. 

Robeson — Last  Monday  in  January. 

j¥oore— First  Monday  in  February  and  August,  and 
continue  two  weeks. 

Harnett— Ihivd  Monday  in  February  and  August. 

B/ade/i- First  Monday  after  the  third  Monday  of  Feb- 
ruary and  August,  and  continue  two  weeks. 

CoZw?/j6ms— Third  Monday  after  the  third  Monday  of 
February  and  August,  and  continue  two  weeks. 

Brunsivick—Yiiih  Monday  after  the  third  Monday  of 
February  and  August. 

Jo/mstoH— Sixth  Monday  after  the  third  Monday  of 
February  and  August,  and  continue  two  weeks. 

iJooeson— Eighth  Monday  after  the  third  Monday  of 
February  and  August,  and  continue  two  weeks. 

J.«son— Tenth  Monday  after  the  third  Monday  in  Feb- 
ruary and  August,  and  continue  two  weeks. 

Richmond — Twelfth  Monday  after  the  third  Monday  in 
February  and  August,  and  continue  two  weeks. 

Cumberland — Fourteenth  Monday  after  the  third  Mon- 
day in  February  and  August,  and  continue  two  weeks. 

The  January  terms  of  Cumberland  and  Robeson,  as 
above  provided  for,  shall  l>e  held  by  the  resident  judge  of 
the  district,  unless  otherwise  directed  by  the  governor, 
and  the  judge  holding  said  January  courts  shall  receive 
as  compensation  therefor  one  hundred  dollars  for  each 
court,  to  be  paid  by  the  counties  of  Cumberland  and 
Robeson. 

The  fifth  judicial  disti-ict  shall  be  composed  of  the  fol- 


Chap.  23.]  COURTS-SUPERIOR.  371 

lowing  counties,  and  the  superior  courts  thereof  shall  be 
held  at  the  following  times,  to  wit: 

n»  4TS'i,  ?:ts^. -■;«-;  «''-■• '  ^'^^' 

c.  319.  ,         , 

'=°XTa««-sSo"d  Monday  be£o«  the  first  Monday  of 
*'S«J'«"'3:Sy  Woro  the  fl«t  Monday  o£  March 
"' G,?^or5*First  Monday  of  March  and  September,  and 
"°S«.rsS*d  Monday  after  the  first  Monday  of 
"^^r^eiffirMonday  after  the  first  Monday   of 

»CSJ!.lt|ff  \da?=  t^ .|2|.nday  Of 
«¥*  :,:iSr&dt  Xrthe'"S.Ttonday  of 
"?S»^?-Elev'Sth '-Monday  after  the  first  Monday  of 
"Cfc»'w.^TSth  Monday  after  the  fi«t  Monday 

"'  r«tMond?y'l31^"the  Eockmgham  FaU  and  Spring 
terms,  and  continue  two  weeks. 

held  at  the  following  times,  to  wit: 

Sixth  Judicial  District.     1876-'7,  c  255,  s.  1,   ^f »  2- 
28    1879,  c.  110.  1881,  c.  298,  ss.  1,  2,  3.    1883,  c.  114. 
MecMeub«rr/-Last  Monday  of  February  and  August, 
^''hZl'^^^'-^^rTMolt.j  of  March  and  September. 


372  COURTS— SUPERIOR.  [Chap.  23. 

Lincoln — Fourth  Monday  after  the  fourth  Monday  of 
March  and  September. 

Gaston— ¥\tih  Monday  after  the  fourth  Monday  of 
March  and  September,  and  continue  two  weeks. 

C/ci'-e/awd— Seventh  Monday  after  the  fourth  Monday 
of  March  and  September,  and  continue  two  weeks. 

Ruflierford—'^mih.  Monday  after  the  fourth  Monday 
of  March  and  September,  and  continue  two  weeks 

Po/fc— Eleventh  Monday  after  the  fourth  Monday  of 
March  and  September,  and  continue  two  weeks. 

The  seventh  judicial  district  shall  be  composed  of  the 
following  counties,  and  the  superior  courts  thereof  shall 
be  held  at  the  following  times,  to- wit: 

Seventh  Judicial  District.     18Y6-'7,  c.  255,  s.  1.     1879, 
c.  90.     1883,  c.  257.     1883,  c.  298. 

Davie — First  Monday  of  March  and  September. 

Fa dfcin— Second  Monday  of  March  and  September. 

Davidson— Third  Monday  of  March  and  September, 
and  continue  two  weeks. 

Wilkes— YiYst  Monday  after  the  fourth  Monday  of 
March  and  September,  and  continue  two  weeks. 

Alleghany— 'lYnvA  Monday  after  the  fourth  Monday  of 
March  and  September. 

iSiirr?/— Fourth  Monday  after  the  fourth  Monday  of 
March  and  September,  and  continue  two  weeks  at  Spring 
term,  and  one  week  at  Fall  term. 

^Stofces— Sixth  Monday  after  the  fourth  Monday  of 
March  and  fifth  Monday  after  fourth  Monday  of  Septem- 
ber, and  continue  one"week  at  Spiing  term,  and  tAvo 
weeks  at  Fall  term. 

Fors?/;/i— Seventh  Monday  after  the  fourth  Monday  of 
March  and  September,  and  continue  two  weeks. 

Rovmn—Wmi\i  Monday  after  the  fourlh  Monday  of 
March  and  September,  and  continue  two  weeks. 

The  eighth  judicial  district  shall  be  composed  of  the 
following  counties,  and  the  superior  courts  thereof  shall 
be  held  at  the  following  times,  to- wit: 

Eighth  Judicial  District.    1876-'7,  c.  255,  s.  1.    1879,  c. 
79.  1879,  c.  277.    1880,  c.  4.   1881,  c.  06.   1881,  c.  143. 

Catawba — Last  Monday  of  August  and  February,  and 
continue  two  weeks. 


Chap.  23.]  COURTS-SUPEKIOK.  8'3 

B.rte-Secona  Monday  ot  March  and  September,  and 
"=°SuS-Fonrth  Monday  of  March  and  Septcmher, 
='"S." -leconcmt'day  after  the  *«;*  Monday  of 
-ll^if-^fflh'^SiVS- *e'lo°oSr%nday  Of 

■^"^Jtoi-SxtSonday  after  the  fourth  Monday  of 
"sHMni"  X?The  SrTlonaay  of 
4Ss|i«rM;n^aVS;5;r°ThrfS''Monday  of 

«5t.Si?!?St"Mo„day  after  the  fourth 

«!^?Se?r-^lec?nT&ra  rrVhr.rr  Monday  of 
August  and  February,  and  continue  two  weeks. 

held  at  the  following  times,  to  wit: 

Ninth  Judicial  Distbict.    1883,  c.  164. 

Mad«o»-First  Monday  ot  March  and  August,  and 
"S^rSr-TlS  Monday  of  March  and  August,  and 
'=°?tSr»r-Fourth  Monday  after  the  fh-st  Monday 
°'S»»*^Flir  Monday  after  the  first  Monday  of 
4i'^^S'M?n^aratS^VefiSt?dayof  March 

" 'toS^t^enth  Monday  after  the  first  Monday  of 
"SjZ-E^TM'onday  after  the  first  Monday  of  March 
"c7^S-NiBth  Monday. after  the  first  Monday  of 
«r»£»t^ETent1;tStrStrthTi5t  Monday  of 
''¥i?-T'lSh-  Monday  after  the  first  Monday  of 

March  a"'' '^"£"?L„tb  Monday  after  the  first  Monday 
of^MS td  tMrfMoSdry  of  iJovember.  and  continue 


374  COUETS-SUPERIOR.  [Chap.  23. 

four  weeks,  unless  the  business  shall  sooner  be  disposed 

The  boards  of  commissioners  of  Buncombe,  Madison 
Hendeison,  Haywood,  and  Cherokee  counties  are  author- 
ized to  draw  a  separate  jury  for  each  week  of  the  supe- 
rior court  of  said  counties. 

Sec.  911.  Rotation  of  judges.    R.  €.,  c.  31,  s.  30.     1876- 
'7,  c.  27.     1879,  c.  11. 

The  judges  of  the  superior  court  shall  hold  the  courts 
ot  the  several  judicial  districts  successively,  as  provided 
m  chapter  eleven  of  the  public  acts  of  'the  year  one 
thousand  eight  hundred  and  seventy-nine. 

Sec.  912.  Notification  of  ridings.     1879,  c.  11,  s.  11. 

The  judges  shall  cause  a  notification  of  the  ridings  tO' 
be  published  in  some  newspaper  by  the  first  of  January 
and  first  of  July  preceding  each  circuit. 

Sec.  913.  Special  terms;  exchange  of  courts.    R.  C.   c  31 
s.  20.     1879,  c.  U.S.  12. 

The  governor  shall  have  power  to  appoint  any  judge  to 
hold  special  terms  of  the  superior  court  in  any  county 
and  by  consent  of  the  governor,  the  judges  may  exchange 
the  courts  of  a  particular  county  or  counties;  but  no 
judge  shall  be  assigned  to  hold  the  courts  of  any  district 
oftener  than  once  in  four  years:  and  whenever  a  judge 
shall  die  or  resign,  his  successor  shall  hold  the  courts  of 
the  district  allotted  to  his  predecessor. 

State  V.  Adair,  66—298;  State  v.  Watson,  75—136;  State  v.  Graham 
75—256;  State  v.  Muiiro,  80—373;  State  v.  McGimsey,  80-377-  State  v' 
Bowman,  80—432. 

Sec.  914.  Special  terms.    R.  C,  c.  31,  s.  23.     18C8-'9   c 
273,  s.  1.     1876-'7,  c.  44.  ' 

Whenever  it  shall  appear  to  the  governor  by  the  certif- 
icate of  any  judge,  a  majority  of  the  board  of  county 
commissioners,  or  otherwise,  that  there  is  such  an 
accumulation  of  criminal  or  civil  actions  in  the  superior 
court  of  any  county,  as  to  require  the  holding  of  a  special 
term  for  its  dispatch,  he  shall  issue  an  order  to  the  judge 
of  the  judicial  district,  in  which  such  county  is,  or  to  any 
other  judge  of  the  superior  court,  requiring  him  to  hold 
a  special  term  of  the  superior  court  for  such  county,  to 
begin  on  a  certain  Monday,  not  to  inteifere  with  any  of 
the  regular  terms  of  the  courts  of  his  district.  The  judge 
shall  attend  and  hold  such  court. 

State  T.  KetcUey,  70—621;  Royster  v   Cliandlcr.  6  Ired.  Eq.,  291. 


Chap.  23.]  COURTS-SUPERIOR.  375 

Sec.  915.  Notice  to  cliaimian.     1868-'»,  <"•  ^^^f '  *'  ^"     ,, 

Whenever  the  governor  shall  call  a  special  term  of  the 
superior  courJ  for^any  county,  he  shall  notify  the  chair- 
man" f  the  board  of  commissioners  of  the  county  of  such 
S  and  such  chairman  shall  take  immediate  steps  to 
cause  twenty-four,  or  if  a  grand  3ury  be  needed,  thirty- 
eSt  quaimed  persons  to  be  drawn  and  summoned  as 
Srs  for  said  term;  and  also  to  advertise  said  term  at 
thL  com t  house  and  at  one  public  place  in  every  town- 
sMn  of  his  county,  or  by  publication  of  at  least  two 
weeks  in  some'ne/s'paper  published  in  his  county  m  lieu 
of  such  township  advertisement. 

Sec.  916.  Powers,  &c.     1868-'9,  c.  273,  s.  3. 

The  special  terms  of  the  superior  court  held  m  pursu- 
ance of  S  chapter  shall  have  all  the  jurisdiction  and 
powers  that  regular  terms  of  the  superior  court  have. 

Sec.  917.  Terms  to  last,  how  long.     1868-'9,  c.  273,  s.  4. 

The  said  terms  Shall  last  until  all  the  business  of  the 
court  shall  be  disposed  of. 
Sec.  918.  Certificate  of  attendance.    1868-'9,  c.  273,  s.  5. 

The  clerk  shall  give  the  judge  a  certificate  of  attend- 
ance for  the  number  of  days  occupied  by  the  court,  and 
the  iudge  shall  thereupon  be  entitled  to  receive  from  the 
commSioners  of  the  county  in  which  the  court  is  held 
his  expenses,  at  the  rate  of  one  hundred  dollars  per  week 
as  his  compensation  for  holding  said  term. 

Buxton  V.  Com'rs,  82—91. 
Sec  919.  All  persons  bound  to  attend  as  at  regular  terms; 
''"no  process^except  subp«nas  returnable^thexeto^^  K.  C, 
c   31   ss  23,  24.     1844,  c.  10,  s.  2.     1848,  c.  ^  J. 

AU  persons  and  witnesses  summoned  at  the  regular  or 
sneciafterrn  and  officers  or  others  who  may  be  bound  to 
SittTrexl  regular  term  of  the  c--t;|haU^^^^^^ 
the  special  lerm,  under  the  same  ™1«^' /^«,  *f  *Xt  So 
wmltiesasif  the  term  were  a  regular  teim.  But  no 
Pes   hall  bemaderetuvnabletheretoexceptsubpoenas, 

OT  other  process  for  the  attendance  of  witnesses. 
Askew  V.  Stevenson,  Phil,  288. 

Sec.  920.  Subpoenas,  &c.     1868-'9,  c.  273,  s.  8. 

Subpoenas  may  issue  returnable  on  any  day  of  any 
special  term. 


376  COURTS— SUPERIOR.  [Chap.  23. 

Sec.  921.  Grand  Juries.     1868-'9,  c.  273,  s.  9. 

There  shall  be  no  grand  jury  at  any  special  term,  un- 
less the  same  shall  be  ordered  by  the  governor. 

Sec.  922.  Original  jurisdiction  of  superior  court.    Const 
Art.  IV.,  ss.  12,  27.     18C6-'7,  c.  251.     1879,  c.  92.  s. 
11.     1881,  c.  210. 

The  superior  court  shall  have  original  jurisdiction  of  all 
civil  actions  whereof  exclusive  original  jurisdiction  is  not 
given  to  some  other  court;  and  of  all  criminal  actions  in 
which  the  punishment  may  exceed  a  fine  of  fifty  dollars 
or  imprisonment  for  thirty  days;  and  of  all  such  affrays 
as  shall  be  committed  within  one  mile  of  the  place  where, 
and  during  the  time,  such  court  is  being  held;  and  of  all 
offences  whereof  exclusive  original  jurisdiction  is  given 
to  justices  of  the  peace,  if  some  justice  of  the  peace  shall 
not  within  six  months  after  the  commission  of  the 
offence  proceed  to  take  official  cognizance  thereof. 

Rives  V.  Guthrie,  1  Jon.,  84;  Donaldson  v.  Waldrop,  63—507;  Wilming- 
ton V.  Davis,  63—583;  State  v.  Johnson.  64—581;  Hedgecockv.  Davis,  gC- 
650;  Credle  v.  Gibbs,  65-193;  Edenton  v.  Wool,  65-379;  State  v.  Dealon, 
65—496;  Slate  v.  Pendleton,  65—617;  Froneberger  v.  Lee,  66—833;  Wins- 
low  V.  Weith,  66—432;  Dulio  v.  Howard,  66—433;  Froelich  v.  S.  Ex.  Co., 
67— 1;  Davis  V.  Baker,  67—388;  State  v.  Porter,  69—140;  Caldwell  v.  Beatty,' 
69—365;  State  v.  Yarborough,  70—250;  State  v.  Heidelburg,  70—496;  R 
R.  Co.  V.  Johnson,  70—509;  Bullenger  v.  Marshall,  70— siO;  Brandok  v! 
Cora'rs,  71—62;  State  v.  Rouseau,  71—194;  State  v.  Vermington,  71—264'; 
Templeton  v.  Summers,  71  —  269;  Giifflth  v.  Com'rs,  71-840;  Walti 
V.  Bell,  71—405;  Barnes  v.  Brown,  71—507;  State  v.  Perry,  71— 53.>; 
Sutton  V.  McMillan,  73—103;  State  v.  Upchurch,  72—146;'  Stat.^  v 
Pressly,  73-264;  State  v.  Quick,  73-241;  Willoughby  v.  Threadgilli 
73—438;  Latham  v.  Rollins,  72—454;  State  v.  Bairev,  73—70;  State  v 
Buck,  73—266;  State  v.  Buck,  73—630;  Bellamy  v.  Pippin,  74^46;  For- 
sythe  v.  Bullock,  74—135;  State  v.  Grifflce,  74—316;  Hcndric'k  v.  MMvfield, 
74—636;  Pullen  v.  Green,  75—215;  Priveltv.  Calloway,  75—233;  Oliverv' 
Wiley,  75—320;  Nance  v.  R.  R.  Co.,  76-9;  State  v.  Threadgill,  76-I7' 
Washington  v.  Hammond,  76—33;  Slate  v.  Styles,  76—156;  Brown  v.' 
Hoover,  77—40;  Claywcll  v.  Sudderlh,  77—287;  Com'rs  v.  R.  R.  Co  77— 
397;  McMillan  v.  Hamiltou,  77—300;  Stale  v.  Hamplon,  77-.:,26:  Perry  v 
Shepherd,  78—83;  Nttherlon  v.  Candler.  78—88;  Evans  v.  Williamson.  79 
-80;  Brallon  v,  David.son,  79—423;  Walton  v.  Walton,  80—26;  Bank  v 
Wilson,  80—200;  State  v.  Educy,  80—300;  Slate  v.  Monroe,  80-373-  Stale 
v.  Anderson,  80-429;  Murphy  v.  McNeill,  82—221;  SIcDonald  v.  Cannon, 
83—345;  State  v.  Moore,  83—659;  State  v.  Taylor,  83-601;  Slate  v.  Berry' 
83—603;  State  v.  Mitchell,  83—074;  Brickcll  v.  Bell,  84—83;  Greer  v.  Caclej 
84—385;  State  v.  Reaves,  85—553;  Kirkman  v.  Phipps,  86—428-  Hanuali 
V.  R  R.  Co.,  87—331. 


Chap.  23.]  COURTS-SUPERIOK.  377 

Sec.  923.  Appellate  jurisdiction.    Const.,  Art.  IV.,  s.  16. 

The  superior  court  shall  have  appellate  jurisdiction  ot 
all  issues  of  law  or  of  fact,  determined  by  a  clerk  of  the 
superior  court  or  a  justice  of  the  peace,  and  of  all  appeals 
from  inferior  courts  for  error  assigned,  in  matters  ot  law, 
as  provided  in  this  code. 

Pearce  V.  Lovenier,  71-248;  Smith  v.  R.  R.  Co.,  73-63;  McBryde  v. 
Patterson  73-478;  McDaniel  v.  Watkios,  76-399;  Suttle  v.  Green,  .8- 
76-  Faison  v.  Johnson,  78-78;  Evans  v.  Williamson,  79-86;  Brown  v. 
Brittain,  84-553;  Boyctt  v.  Vaugban,  85-363;  Allen  v.  Jackson,  86-321; 
State  v.Mott,  86—631;  Boingv.  R.  R.  Co.,  87-360. 

Sec.  924.  Judge  to  take  oath;  oaths  subscribed  and  re- 
turned  to  secretary  of  state.  R.  C^  c.  31,  ss.  18,  19. 
1777,  c.    115,  ss.  5,   6.     1806,  c.  694,   s.    13.    1848, 

C.  45.  ,  1      n     ■ 

Every  judge  before  he  shall  act  as  such,  shall,  in  open 
court,  or  before  the  governor,  or  before  one  of  the  judges 
of  the  supreme  or  superior  courts,  or  before  some  justice 
of  the  peace,  take  the  oath  appointed  for  public  othcers, 
and  also  an  oath  of  office.  The  officer  or  court  before 
whom  said  judge  shall  qualify  shall  cause  the  judge  to 
subscribe  the  oaths  by  him  taken,  and  having  certified 
the  same,  shall  return  said  oaths  to  the  secretary  of  state 
who  shaU  carefully  preserve  them;  audit  any  judge  shall 
Tct  in  his  office  before  he  shall  have  taken  the  oaths 
directed,  he  shall  forfeit  and  pay  two  thousand  dollars 
one  half  to  the  use  of  the  state  and  the  other  half  to  the 
person  who  shall  sue  for  the  same. 

Sec.  925.  Minutes  of  preceding  day  to  be  read  each 
morning.    1861,  e.  3. 

Every  morning  during  the  term  the  judge  presiding 
shall  oi^er  the  reading  of  the  minutes  of  said  court  fo^ 
the  day  preceding,  and  the  minutes  ot  the  last  day  shall 
be  read  immediately  preceding  the  final  adjournment  of 
said  term. 

Sec.  926.  If  judge  of  a  superior  court  not  present,  court 
to  be  adjourned,  when.  K.  C,  c.  31,  s.  21.  C.  C.  P., 
s.  396.     1879,  c.  11. 

If  the  judge  of  a  superior  court  shall  not  be  present  to 
hold  any  term  of  a  court  at  the  time  fixed  therefor,  it 
shall  be  the  duty  of  the  sheriff  to  adjourn  the  court  from 
day  to  day  until  the  fourth  day  of  the  term  inclusive,  un- 
less he  shall  be  sooner  informed  that  the  judge  from  any 
cause  cannot  hold  the  term;  if  by  sunset  on  the  fourth 


378  COURTS— SUPERIOR.  [Chap.  23. 

day  the  jud^e  shall  not  appear  to  hold  the  teini,  or  if  the 
sherift  shall  be  sooner  advised  that  the  judge  cannot  hold 
the  term,  it  shall  then  be  the  duty  of  the  .sheriff  to  ad- 
journ the  court  until  the  next  term. 

Williams  v.  Rockwell,  64 — 325;  Norwood  v.  Thorp,  84—682;  Sta'e  v. 
McGimsey,  80—377. 

Sec.  927.  Constable    attending  juries    to    be    sworn,   for 
what  purpose.    R.  C,  c.  «!,  s.  36.     1801,  c.  5«2,  s.  2. 

When  any  officer  (except  such  as  are  appointed  to  at- 
tend the  grand  jury)  shall  be  appointed  or  summoned  to 
atiend  any  superior  court,  the  clerk,  at  the  time  of  the 
first  going  out  of  a  jury  on  the  trial  of  any  civil  or  crimi- 
nal action,  shall  adniinister  an  oath  to  such  officer,  faith- 
fully to  attend  the  several  juries  that  may  be  put  under 
his  care  during  that  term,  that  shall  be  charged  in  the 
trial  of  any  civil  or  criminal  action ;  and  after  such  officer 
shall  be  once  so  sworn,  he  shall  be  considered  to  all  in- 
tents and  purposes  as  acting  upon  the  same  oath  while 
attending  every  jury,  that  he  may  be  called  to  attend 
during  that  term. 

Sec.  928.  Process  not  to  be  executed  on  Sunday.    R.  C, 
c.  31,s.  54.     1777,  c.  118,  s.  6. 

It  shall  not  be  lawful  for  any  sheriff,  constable,  or 
other  officer  to  execute  any  summons,  capias,  or  other 
process  on  Sunday,  unless  the  same  be  issued  for  treason, 
felony  or  misdemeanor. 

Cowlesv.Britfain,  2  Hawks,  204;  Bland  v.  Whitfield,  1  Jon.,  123;  Devries 
V.  Summit,  86—126. 

Sec.  920.  Wlien  there  is  no  officer,  or  he  will  not  execute 

process,    on    afHdavit,    the    clerk  shall  direct  process 

to  the  sliei-ifl:'  of  adjoining  county.     R.  C,  c.  31,  s.  55. 

1879,  c.  156,  s.  3.  1821,  c.  1080.  1822,  c.  1132, 

s.  1.  1846,  c.  61. 

If  at  any  time  there   should  not  be  in  the   county  a 

proper   officer  to   whom   precepts  or  process,    original, 

mesne  or  final,  of  a  court  of  record,  shall  or  ought  to  be 

directed,  who  can  lawfully  execute  the  same;  or  if  there 

be  such  officer  who  shall  refuse  or  neglect  to  execute  such 

precept  or  process,  then  the  clerk  of  the  court  from  which 

the  same  hath  issued  or  shall  issue,  upon  the  facts  being 

verified  befoie  him  by  written  affidavit,  subscribed  by  the 

plaintiff  or  his  agent,  shall  issue  such  precept  or  process 

to  the  sheriff   of  any  adjoining  county,  who  shall  have 


Chap  23.]  COURTS-SUPERIOR.  379 

power  to  execute,  and  shall  execute  the  same,  in  like 
manner  as  if  he  were  sheriff  of  the  county. 

CoUais  V.  McLeod,  8  Ired. ,  221 ;  Bowen  v.  Jones,  13  Ired.,  25. 

Sec.  930,  When  process  to  issue  to  sheriff  of  adjoining 
county.     186»-'70,  c.  175,  s.  1. 

In  all  cases  where  the  sheriff  of  any  county  shall  be 
interested,  if  there  is  no  coroner  in  said  county  process 
may  be  issued  to  and  shall  be  executed  by  the  sherift  ot 
any  adjoining  county. 

Yeargin  v.  Siler,  83—348. 

Sec  931.  Sheriff  executing  process  out  of  his  county  to 
iutve  extra  pay.    K.  C  c.  31,  s.  56.     1822,  c.  1133,  s. 

Whenever  any  precept  or  process  shall  be  directed  to 
the  sheriff  of  an  adjoining  county^  to  be  served  out  of 
his  county  as  aforesaid,  such  shenff  shall  have  for  such 
service,  not  only  the  fees  allowed  by  law  but  a  further 
compensation  of  five  cents  for  every  mile  of  travel  m 
going  to  and  returning  from  service  of  such  precept  or 
prociss:  Provided,  that  whenever  any  execution  of  five 
hundred  dollars  or  upwards  shall  be  du-ected  to  the 
sheriff  of  an  adjoining  county,  under  this  chapter,  such 
sheriff  shall  not  be  allowed  mileage,  but  only  the  com- 
missions to  which  he  shall  be  entitled. 

Sec  933  If  defendant  in  penal  suit  plead  former  judg- 
ment, plaintiff  may  reply  fraud;  release  of  the  action 
void;  defendant  pleading  falsely  indictable.  R.  C,  c. 
31.,  s.  lOO.    4  Hen.  VII,  c.  20. 

If  an  action  be  brought  in  good  faith  by  any  person  to 
recover  a  penalty  under  a  law  of  this  state,  or  ot  the 
United  States,  and  the  defendant  shall  set  up  in  bar 
thereto  a  former  judgment  recovered  by  or  against  him 
in  a  former  action  brought  by  any  other  person  for  the 
same  cause,  then  the  plaintiff  in  such  action,  brought  m 
eood  faith,  may  reply  that  the  said  former  3udgment  was 
obtained  by  covin ;  and  if  the  collusion  or  covm  so  averred 
be  found,  the  plaintiff  in  the  action  sued  with  good  faith 
shall  have  recovery;  and  no  release  made  by  such  pany 
suinsr  in  covin,  whether  before  action  brought  or  after, 
shall  be  in  anywise  available  or  effectual;  and  every  per- 
son pleading  such  false  defence  shaU  be  guflty  ot  a  mis- 
demeanor. 


380  COURTS— SUPERIOR.  [Chap.  23. 

Sec.  033.  Payment  or  satisfaction  may  be  pleaded  in 
suits  on  bond  and  judgment;  also  payment  or  satisfac- 
tion after  the  day  of  paying  in  suits  on  bond,  con- 
ditioned to  be  discliarged  by  a  less  sum.  K.  C,  c.  31,  s. 
101.  4  Hen.  VII.,  s.  20. 

When  an  action  shall  be  brought  on  any  single  bill  oi- 
on  any  judgment,  if  the  defendant  had  paid  the  money 
due  upon  such  bill  or  judgment  before  action  brought, 
or  where  the  defendant  hath  made  satisfaction  to  the 
plaintiff  of  the  money  due  on  such  bill  or  judgment  in 
other  manner  than  by  payment  thereof,  such  payment 
or  satisfaction  may  be  pleaded  in  bar  of  such  action;  and 
where  only  part  of  the  money  due  on  such  single  bill  or 
judgment  hath  been  paid  by  the  defendant,  or  satisfied 
in  other  manner  than  by  payment  of  money,  such  part 
payment  or  part  satisfaction  may  be  pleaded  in  bar  of  so 
much  of  the  money  due  on  such  single  bill  or  judgment, 
as  the  same  may  amount  to;  and  where  an  action  is 
brought  on  any  bond  which  hath  a  condition  or  defeas- 
ance to  make  void  the  same  upon  the  payment  of  a  lesser 
sum  at  a  day  or  place  certain,  if  the  obligor,  his  heirs, 
executors  or  administrators  have,  before  the  action 
brought,  paid  to  the  obligee,  his  executor  or  adminis- 
trator, the  principal  and  interest  due  by  the  condition  or 
defeasance  of  such  bond,  though  such  payment  were  not 
made  strictly  according  to  the  condition  or  defeasance; 
or  if  such  obligor,  his  heirs,  executors  or  administrators 
have  before  action  brouglit  made  satisfaction  to  the 
plaintiff  of  the  principal  and  interest  due  by  the  condi- 
tion or  defeasance  of  such  bond,  in  other  manner  than 
by  payment  thereof,  yet  the  said  payment  or  satisfaction 
may  be  pleaded  in  bar  of  such  action,  and  shall  be  efifec- 
tual  as  a  bar  thereof,  in  like  manner  as  if  the  money 
had  been  paid  at  the  day  and  place,  according  to  the  con- 
dition or  defeasance,  and  so  pleaded. 


Sec.  934.  In  suits  on  penal  bonds,  the  sum  due,  interest 
and  costs  being  brought  into  court,  penalty  shall  be 
discharged.    K.  C,  c.  31,  s.  103.    4  Anne,  c.  IC,  s.  13. 

If  at  any  time,  pending  an  action  on  any  such  bond 
with  a  penalty,  the  defendant  shall  bring  into  court, 
where  tlie  action  shall  be  pending,  all  the  principal  money 
and  interest  due,  and  also  all  such  costs  as  have  been  ex- 
pended in  any  suit  upon  such  bond,  the  said  money  shall  be 
deemed  and  taken  to  be  in  full  satisfaction  and  discharge 


Chap.  23.]  COURTS -SUPEEIOR.  381 

of  said  bond,  and  the  court  shall  give  judgment  accord- 
ingly. 

Governor  V.  Sutton,  4  D.  &  B.,  484;  Thoroughgood  v.  Walker,  2  Jon.,  15. 

Sec.  935.  Judgments  to  stand  till  reversed.  R.  C,  c.31,  s. 
103.    4  Hen.  IV.,  c.  23. 

Every  judgment  given  in  a  court  of  record  having 
jurisdiction  of  the  subject,  shall  be,  and  continue  in  foice 
until  reversed  according  to  law. 

Hamilton  v.  Wright,  4  Hawks,  283;  Armstrong  v.  Harshaw,  1  Dev.,  187; 
White  V.  Albertson,  3  Dev.,  241;  Jones  v.  Jones,  8  Dev.,  300;  Barnard  v. 
Roe,  4  Dev.,  295;  Irby  v.  Wilson,  1  J).  &  B.  Eq.,  568;  Skinner  v.  Moore. 
2  D.'  &  B.,  138;  Winalow  v.  Anderson,  3  D.  &  B.,  9;  Jennings  v.  Stafford, 
1  Ired,  404;  Hafner  v.  Erwin,  4  Ired.,  529. 

See.  936.  Non-snit  not  allowed  after  verdict.    R.  C,  c.  31, 
s.  110.    3  Hen.  IV.,  c.  7. 

In  actions  where  a  verdict  shall  pass  against  the  plain- 
tiff, he  shall  not  be  non-suited. 

Sec.  937.  Party  in  execution   not  to  be   discharged    on 
habeas  corpus.    R.  €.,  c.  31,  s.  111.    2  Hen.  V.,  c.  2. 

When  a  certiorari  or  writ  of  habeas  corpus  cum  causa 
shall  issue,  and  the  sheriff  or  other  officer  to  whom  it  is  di- 
rected shall  return  upon  the  same  that  the  prisoner  is 
condemned,  by  judgment  given  against  him,  and  held  in 
custody  by  virtue  of  an  execution  issued  against  him,  the 
prisoner  shall  not  be  let  to  bail,  but  shall  be  presently  re- 
manded, where  he  shall  remain  until  discharged  in  due 
course:  of  law. 

Sec.  938.  Death  between  verdict  and  judgment,  not  error. 
If,  &c.    R.C.,  c.31,  s.  112.     17  Chas.  II.,  c.  8,  s.  1. 

In  no  action  shall  the  death  of  either  party  between 
the  verdict  and  the  judgment  be  alleged  for  error,  if  such 
judgment  be  entered  within  two  terms  after  the  verdict. 

Sec.  939.  Surveys  ordered  in  cases  of  disputed  boundary; 
how  and  by  whom  made;  charges  for  surveys  to  he 
taxed  as  costs.  R.  C,  c.  31,  s.  119.  1779,  c.  157,  s.  7. 
1786,  c.  252,  ss.  1,  2. 

Whenever  in  any  suit  pending  in  the  superior  court, 
the  bounds  of  lands  shall  be  drawn  in  question,  the  court 
may,  if  deemed  necessary,  order  a  survey  of  the  lands  in 
dispute,  agreeable  to  the  bounds  and  lines  expressed  m 
each  party's  titles,  and  such  other  surveys  as  shall  be 
deemed  useful;  which  surveys  shall  be  made  by   two  sur- 


382  COURTS— SUPERIOR.  [Chap.  23. 

veyors  appointed  by  the  court,  one  to  be  named  by  each 
of  the  parties,  or  by  oue  surveyor,  if  the  parties  agree; 
and  the  surveyors  shall  attend  according  to  the  order  of 
the  court,  and  make  the  surveys,  and  shall  make  as  many 
accurate  plans  thereof  as  shall  be  ordered  by  the  court; 
and  for  such  surveys,  the  court  shall  make  a  proper  allow- 
ance, to  be  taxed  as  among  the  costs  of  the  suit. 


Sec.  940.  Return  on  notice,  evidence.    R.  C,  c.  31,  s.  123. 
1799,  c.  537. 

When  a  notice  shall  issue  to  the  sheriff,  his  return 
thereon  that  the  same  has  been  executed  shall  be  deemed 
sufficient  evidence  of  the  service  thereof. 


Sec.  941.  Speedy  collection  of  proceeds  of  judicial  sales, 
by  motion.    R.  C,  c.  31,  s.  129. 

The  supreme  and  other  courts  ordering  a  judicial  sale, 
or  having  possession  of  the  bonds  which  may  have  been 
taken  on  such  sale,  may,  on  motion,  after  ten  days'  no- 
tice thereof  in  writing,  enter  judgment  as  soon  as  the 
money  may  become  due  against  the  debtors  or  any  of 
them,  unless  for  good  cause  shown  the  court  shall  direct 
some  other  mode  of  collection. 

Gotten  expurU,  Phil.  Eq.,  79;  Blackburn  v.  Brooks,  65 — 413;  Mauney  v. 
Pemberton,  75 — 219;  Chambers  v.  Peuland,  78— 53 ;  Smith  v.  Moore,  79— 
82. 

Sec.  942.  Purchasers  under  judicial  sales  protected; 
deemed  legal  owners.  1858-'9,  c.  50. 
Any  person  let  into  possession  under  any  judicial  sale 
confirmed,  where  the  title  may  be  retained  as  a  security 
for  the  price,  shall  be  deemed  the  legal  owner  of  the 
piemises  for  all  purposes  of  bringing  suits  for  injuries 
thereto,  after  the  day  of  sale,  by  trespass  or  wi'ongful 
possession  taken  or  continued,  in  the  same  manner  as  if 
the  title  had  been  conveyed  to  him  on  day  of  sale,  un- 
less restrained  by  some  order  of  the  court  directing  the 
sale;  and  the  suit  so  brought  shall  be  under  the  conti'ol 
of  the  court  ordering  the  sale. 

Sec.  94.3.  Quakers  may  wear  hats   in  court.     R.  C,  c.31, 
s.  131.     1784.  c.  209. 

The  people  called  Quakers  may  wear  their  hats  in  courts 
of  judicature,  as  elsewhere,  according  to  the  custom  of 
their  sect. 


Chap.  24.] 


COURT— SUPREME. 


383 


Sec.  944.  Certain  cases  pending  in  courts  of  «?<l»"ty  ^nd 
county  courts  to  be  trauslened.  187 1-'3,  c.  Ibl.  l*>?  ts 
.'4,  c.  183.     1874.'5,c.  81.     1876.'7,  c.  9. 

All  suits,  petitions  and  other  proceedings  pending  in 
the  late  courts  of  equity,  and  in  the  late  courts  of  pleas 
and  quarter  sessions,  and  not  determined  by  final  judg- 
ment or  decree,  and  all  such  cases  wherein  any  act  was 
decreed  to  be  done  or  deed  to  be  executed  and  said  act 
was  not  done  nor  "deed  executed,  may  be  transferred  to 
the  superior  court  of  the  county  in  which  they  were  pend- 
ing, at  the  instance  of  any  person  interested.  And  said 
superior  court  shall  have  power  to  make  all  orders,  judg- 
ments and  decrees  as  shall  be  necessary  for  finally  adju- 
dicating  and  settling  the  same. 

Curtis'  heirs  ex  part^.  82—435;  Lash  v.  Thomas,  86—313. 


CHAPTER  TWENTY-FOUR. 
OOUKT--SUPEEME. 


Section. 

945.  Supreme  court,  ite  jurisdiction. 

946.  Cases,   how  taken    to  the    su- 

preme court. 

947.  Claims  against  the  state. 

94&.  Manner  of  prosecuting  claims 
against  the  state. 

949.  Justices  of  the  supreme  court 

may  take  probate  of  deeds,  &c. 

950.  Justices  of   the  supreme  court 

to    appoint    a    marshal;  how 
paid. 

951.  Compensation  of  servant  of  su 

preme  court  to  be  fixed  by  the 
court;    how    selected    or    re- 
moved. 
953.  Rooms  set  apart  for  preserving 
certain  records. 

953.  Supreme  court  to  convene  on 

the  first  Mondays  in  February 
ftud  October. 

954.  To  sit  till  business  is  dispatch- 


Section. 

ed;  name  and  style  of  court; 
to  stand  adjourned  if  no  jus- 
tice attends  during  the  first 
week. 

9,55.  Judges  to  take  and  subscribe 
oaths  to  be  filed,  «fcc. 

956.  Two,  in  case  of  illness,  &c.,  to 

hold  court. 

957.  Court  to  render  judgment  on 

view  of  record;  if  to  superior 
court,  final  judgment  to  be 
certified  to  that  court;  in  crim- 
inal cases,  decision  certified  to 
court  below;  how  that  court 
to  proceed. 

958.  Clerk  of    supreme    court,   his 

bond  and  oath ;  where  office  to 
be  kept. 

959.  Clerk  to  record  such  parts  of 

proceedings  as  the  court  shall 
direct. 


38-1: 


COURT— SUPREME. 


[Chap.  24:. 


Section. 

960.  Clerk's  pay  fur  such  services. 

961.  Justices   lo  prescribe   rules  of 

practice  for  supreme  and  su- 
perior courts. 
963.  On  appeals  from  interlocutory 
judgment,  &c.,  no  judgment 
to  be  entered;  opinion  with 
instructions  to  be  certified  to 
court  below. 

963.  Exhibits  in    cases    proved   by 

■witnesses;  to  be  examined  by 
supreme  court;  rules  as  to 
sucli  witnesses. 

964.  Justices  to  deliver  their  opin- 

ions in  writing;  no  certificate 
of  decision,  no  execution  to  be 
issued  until  the  opinion  of  the 
court  is  delivered  to  the  clerk. 


Section. 

965.  Court  may  amend  any  proceed- 

ing; may  amend  by  making 
parties;  may  allow  further  tes- 
timony to  be  taken. 

966.  When  petition  to  rehear  final 

judgment  may  be  filed,  &c. 

967.  Suits  may  be  dismissed  for  fail- 

ure to  prosecute  after  notice. 

968.  Certificates  of  decisions  trans- 

mitted to  court  below  on  the 
rise  of  the  court;  execution 
for  costs  in  supreme  and  su- 
perior courts  is  issued  from 
those  courts  respectively. 

969.  In  the  absence  of  tie  attorney 

general,  court  lo  appoint  coun- 
sel for  the  state. 


Sec.  945.  Supreme  court,  its  jurisdictiou,    Coust.,  Art. 
IV.,  s.  8.    C.  C.  P.,  s.  413. 

The  supreme  court  shall  have  jurisdiction  to  review, 
upon  appeal,  any  decision  of  the  courts  below,  upon  any 
matter  of  law  or  legal  inference.  And  the  jurisdictioa 
of  said  court  over  "issues  of  fact"  and  "questions  of  fact" 
shall  be  the  same  exercised  by  it  before  the  adoption  of 
the  constitution  of  one  thousand  eight  hundred  and 
sixty -eight,  and  the  court  shall  have  the  power  to  issue 
any  remedial  writs  necessary  to  give  it  a  general  su- 
pervision and  control  over  the  proceedings  of  the  inferi- 
or courts. 

Bethea  V.  McLennon,  1  Ired.,  523;  Runyon  v.Anderson,  3  Ired.,586;  Stale 
V.  Crayton,  6  Ired.,  164;  Am.  Bible  So.  v.  Ex'rs  of  Hollister,  1  Jon.  Eq., 
10;  Smilh  v.  Cheek,  5  Jon.,  313;  State  v.  Jenkins,  6  Jon.,  19;  Caroon  v. 
Rogers,  6  Jon.,  340;  Rodman  v.  Davis,  8  Jon.,  134;  Gates  v.  Whitfield,  8 
Jon.,  266;  Grissett  v.  Smith,  Phil.,  297;  Heilig  v.  Stokes,  63—613;  Biggs- 
ex  parte,  64 — 202;  Rogers  v.  Goodwin,  64 — 278;  Walton  v.  Jordan,  65^ 
170;  Stale  v.  Jefferson,  66—309;  Islcr  v.  Brown,  67—175;  Foushee  v.  Pat- 
tershall,  67—453;  Rush  v.  Steamboat  Co.,  68—73;  AIcKinnon  v.  Faulk,  68 
279;  Bledsoe  v.  Nixon,  69—81;  Keener  v.  Finger,  70—35;  State  v.  Ketcliey, 
71—147;  Duvall  v.  Rollins,  71—218;  Slate  v.  West,  71—263;  Holmes  v. 
Godwin,  71—306;  Perry  v.  Tuppcr,  71—880;  Sprinkle  v.  Footc,  71—411; 
Williams  V.  Williams,  71— 427;  State  v.  Armstrong,  72 — 193;  Watson  v 
Dodd,  72—240;  Wliitford  v.  Foy,  72—247;  Benbow  v.  Robbins,  73—422; 
Phiferv.  R.  R.  Co.,  72—433;  Ma.xwell  v.  Caldwell,  72—450;  Horne  v 
Home,  72— 534;  State  v.  Powell,  74-270;  State  v.  R.  R.  Co.,  74—287; 
Brink  V.  Black,  74—329;  Johnson  v.  Bell.  74— .855;  Wallington  v.  Mont- 
gomery, 74—372;  McRuc  v.  Com'rs,  74—415;  Mitoliell  v.  Kilburn  ,74 — 183 


Chap.  24.]  COURT- SUPREME.  385 

Swep^on  V.  Summey,  74-551;  Ir.  re.  Schcnck,  74-607;  ninton  v  Deans, 
75_18-  Ilornev.  Home,  75-101 ;  State  v.  Applewhite,  75-229;  Ol.ver  v. 
Wilev  '-.5-320;  House  v.  Quinn,  76-354;  Barnes  v.  Fort,  77-28;  Cannier 

V  Cobb  77-30;  Long  v.  SwimlcU,  77-170;  Gragg  v.  Wagner,  ,7-246; 
Com-r.s'v.   R.  R.   Co.,    77-297;    Rollins  v.   Henry,    77-467;   Cra^vley 

V  Woodfiu  78-4;  Bernard  v.  Johnson,  78-25;  Henry  v.  Smith,  78— 
27-  Perrv  v.  Shepherd,  78-83;  Williamsoa  v.  Canal  Co.,  78-1..0;  Com  rs 

V  Man-nin,  78-181;  McBryde  v.  Patterson,  78-412;  DrivcrV  ease  .8- 
423;  State  v.  Lindsey,  78-499;  State  v.  Lane,  78-547  Slate  v  Small- 
wood  78-560;  Smith  v.  Moore,  79-82;  Oldham  v.  kerchner,  ,9-106; 
Dohson  V.  Chambers,  79-142;  Hill  v.  0..cndine,  79-331  ;Chasta,n  v. 
Coward  79-513;  Meekinsv.  Tatem;  79-546;  Paschall  v.  Bullock,  80-8; 
Bankv  Creditors,  80-9;  Brooks  V.  Iloadon,  80-11;  Skinner  v.Badham, 
80-14-  Oldham  V.  Snced,  80-15;  Ilalyburlon  v.   Carson,   80-16;  Sutton 

V  Sebouwald,  80-20;  Jones  v.  Boyd,  80-258;  Pain  v.  Pain,  80-322; 
Whissenhunt  v.  Jones,  80-348;  State  v.  Edney,  80-360;  State  v.  Spurtin, 
80-362-  State  V.  Murray,  80-364;  State  v.  Scott,  80-365;  State  v.  Mc- 
Gimsey' 80-377;  Suite  v.  Davis,  80-384;  State  v.  Secrest,  80-4o);  State 

V  Keeter  80-472;  State  v.  Blackburn,  80-474;  Earpv.  Richardson.  81- 
5-  Haywood  V.  Daves,  81-8;  Devereux  v.  Devereux,  81-12;  Lewis  v 
Rountree,  81-20;  In  re.  Daves,  81-72;  Bell  v.  Cunningham,  81-8.;  Sim- 
mons Y  Foscue.  81-86;  Kidder  v.  Mcllheuny,  81-123;  Cannon  v.  Morris, 
81-139-  Clifton  V.  Wynn,  81—100;  State  v.  Lawrence,  81-522;  State  v. 
Thorn,  81-555;  State  v.  Fox,  81-576;  Mizell  v.  Simmons,  82-1;  Sim- 
dcrs  v.  Norris,  82-4;  AVhite  v.  Clark,  82-6;  Grant  v.  Reese,  82-,.;  Wil- 
liams v  Kivett  82-110;  Saunders  v.  Norris,  82-243;  Dallon  v.  Webster, 
8o_''97-  McCurry  v.  McCurry,  82-296;  R.  R.  Co.  v.  Richardson,  82-343; 
Ammon  V.  Ammon,  83-398;  Gay  v.  Brookshire,  82-409;  Wilson  v  Line- 
bercer  82-412;  Clayton  v.  Johnson,  82-433;  Badger  v.  Daniel,  82-468; 
Bank  V.  Graham,  82-489;  Gorman  v.  Bellamy,  82-406;  Shields  v.  Whila- 
ker  82—516-  Suddcrlh  v.  McCombs,  82—535;  State  v.  Leitch,  82—539;  State 

V  Hinson  82— 540;  Stale  v.  Swepson,  82-541;  State  v.  Padgett,  82-544; 
Slate  V.  Keeter,  82-547;  State  v.  Crockett,  83-599;  State  v.  Baxter,  82- 
002-  Stale  v.  Jones,  83-091;  State  v.  Braswell,  82-693;  Gordon  v.  Sander- 
son' 83-1;  Corhin  v.  Berry,  83-27;  Sanderson  v.  Dalle v ,  83-07;  Wo,nbl_e 

V  Leach  83-84;  Jones  v.  Holmes,  83-108;  May  v.  Dardon,  81.-23, ; 
Phillips  V.  Lcntz.  83-210;  Hull  v.  Carter.  83-249;  Perry  v.  Adams,  83- 
"66- Waltou  V.  Pearson.  83—309;  Weilons  v.  Jordan.  83-371;  Bank  v. 
Piu'kers  83-377;  Telegraph  Co.  v.  R.  R.  Co..  83-420;  Hutchn.'^on  v.  Rum- 
felt  83^41  •  Lindsay  v.  Moore,  83-444;  Andrews  v.  AVhisnant.  83— 446 ; 
Fov  v  Haughton,  83-467;  Adams  v.  Thomas.  83-5-21;  Howell  v.  Ray.  83 
-558-  State  v.  Swepson.  83-584;  Slate  v.  Ham.  83-590;  Slate  v.  Pollard. 
83-597-  State  v.  Hardee.  83-619;  State  v.  Ke  dh,  83-620;  State  v.  Grady. 
83-643-  State  v.  Donaldson.  83-683;  Greensboro  v.  Scoll,  81-184;  Belden 
V  Snead  84-243;  Bryant  v.  Fisher,  85-71;  McMillan  v.  Baker.  85-291; 
Tucker  v.  Baker,  86-1;  Allen  v.  Baker,  80-91;  Ray  v.  Pattou,  86-386: 
Howertonv.  Henderson,  86-718;  Burnelt  V.Nicholson,  86-728;  State  v. 

Randall,  87—571. 
17 


3S6  COURT— SUPREME.  [Chap.  24. 

Sec.  94C.    Cases,  liow  taken  to  the  supreme  court.     C.  C. 
P.,  s.  414. 

Cases  shall  be  taken  to  the  supreme  court  by  appeal  as 
provided  iu  this  code. 

Grissettv.  Smilh,  Phil.,  297;  Clerk's  office  v.  Huffsleller,  67—449;  State 
V.  Kelclo',  71—147;  Slate  v.  Giiffiu,  71—304;  State  v.  Hawkins,  73—180; 
Slate  V.  Patrick,  73 — 217;  "Wade  v.  New  Berue,  73—498;  Adams  v.  Koeves. 
74 — lOG;  Greene  v.  Ilobgood,  74 — 234;  Wilson  v.  Ilutcliinson,  74—432; 
Kirk  V.  Baruhart,  74 — 053;  Martin  v.  Cluisleen,  7.5— 9G;  RicUardsou  v. 
Debiiam,  75 — 390;  Bradley  v.  Jones,  7ti — 204;  Green  v.  Castleberiy, 
77—164;  State  v.  Morgan,  77—510:  Taylor  v.  Brewer,  78—8;  Meekins  v. 
Tatcm,  79—546;  Sutton  v.  Sebonwald,  80—20;  Slate  v.  Spurtin,  80— 363; 
State  V.  Scott,  80—365;  State  v.  Keeter,  80—473;  Smith  v.  Lyon,  83—3; 
Sever  V.  McLaughlin,  82—383;  Wadsworthv.  Carroll,  82— 333;  nutchinson 
V.  Rumfelt,  83 — 425;  "Walton  v.  Pearson,  82—464;  State  v.  "Walker,  82— 
696;  State  V.  Donaldson,  83—683;  Brown  v.  Williams,  83—684;  AVilson  v. 
Seagle,  84—110;  Syme  v.  Broughton,  84—114;  Brown  v.  Williams,  84— 
116;  Parker  v.  R.  K.  Co.,  84—118;  Hines  v.  Iliues,  84—122;  Turlington  v. 
Williams,  84—125;  State  v.  "Vanu,  84—733;  State  v.  Moore,  84—734;  State 
V.  McDowell,  84—798. 

Sec.  947.    Claims  against  the  state.      C.  C.  P.,  s.   415. 
Const.,  Art.  IV.,  s.  9. 

The  supreme  court  shall  have  original  jurisdiction  to 
hear  claims  against  the  state,  but  its  decision  shall  be 
merely  recommendatory;  no  process  iu  the  nature  of  ex- 
ecution shall  issue  thereon;  they  shall  be  reported  to  the 
next  session  of  the  general  assembly  for  its  action. 

Bledsoe  v.  The  State,  64—392;  Reynolds  v.  The  State,  61 — ^460;  Rand  v. 
The  State,  65—194;  Battle  v.  Thompson,  65—406;  Boner  v.  Adams,  65— 
639;  Bayne  v.  Jenkins,  66-356;  Sinclair  v.  The  State,  69—47;  Clements  v. 
State,  77—143;  Home  v.  The  State,  83—382;  Home  v.  The  Slate.  84—363. 

See.  948.    Manner  of  prosecuting  claims  against  the  state. 
C.  C.  P.,  s.  410. 

Auy  person  having  any  claim  against  the  state  may  file 
his  complaint  in  the  office  of  the  clerk  of  the  supreme 
court,  setting  fortli  the  nature  and  grouuds  of  his  clami. 
He  shall  cause  a  copy  of  his  complaint  to  be  served  on  the 
governor,  and  therein  request  hiiu  to  a|)pear  on  behalf  of 
the  state  and  answer  his  claim.  The  copy  sliall  be  served 
at  least  twenty  days  before  application  for  relief  siiall  be 
made  to  the  court.  In  case  of  an  appearance  for  t  he  state 
by  the  governor,  orany  other  authorized  officer,  the  ])lead- 
iugs  and  trial  shall  be  conducted  in  such  manner  as  the 
court  shall  direct.  If  an  issue  of  fai  t  shall  be  joined  on 
the  pleadings,  the  court  shall  transfer  it  to  the  superior 


Chap.  24.]  COURT-SUPREME.  387 

court  of  some  convenient  county  for  trial  by  a  jury,  as 
other  issues  of  fact  are  directed  to  be  tried,  and  the  judge 
of  the  court  before  whom  the  trial  is  lind  shall  certify  to 
the  supreme  court,  at  its  ne.xt  term,  the  verdict  and  the 
case,  if  any,  made  up  and  settled  as  prescribed  in  cases  of 
appeal  to  the  supreme  court.  If  the  state  shall  not  ap- 
pear in  the  action  by  any  authorized  offirer,  the  court 
may  make  up  issues  and  send  them  for  trial,  as  aforesaid. 
The  supreme  court  shall  in  all  cases  report  the  facts 
found,  and  their  recommendation  tJiereon,  with  the 
reasons  thereof,  to  the  general  assembly  at  its  next 
term. 

Bledsoe  v.  The  State,  64—393;  Bonorv.  Adams,  05—639;  Henry  v.  The 
State.  68— 46o;  Clements  v.  The  Slate,  76—199;  Clements  v.  The  State,  77 
—142;  Home  v.  The  State,  83—383. 


Sec.  949.  Justices  of  supreme  court  may  take  probate  of 
deeds,  &c.    C.  C.  P.,  s.  417.     1868-'9,  c.  277,  s.  11. 

The  several  justices  of  the  supreme  coui-t  shall  have 
like  powers  to  take  the  probate  of  deeds,  and  to  examine 
manied  women  respecting  their  free  consent  to  deeds 
made  by  them,  to  issue  and  hear  writs  of  habeas  corpus, 
to  issue  warrants  for  the  arrest  of  persons  charged  with 
crime,  and  to  dischai-ge  such  persons  on  bail,  as  is  or  may 
be  given  to  the  judges  of  the  superior  com-ts. 

In  re.  Bryan,  1  Winst.,  1. 

Sec.  950.  Justices  of  tlie  supreme  court  to  appoint  a 
marslial,  hoAV  paid.     1873-'4,  c.   34.     1881,  c.  30C. 

The  justices  of  the  supreme  court  may  appoint  an 
officer  to  be  styled  marshal  of  the  supreme  court,  remov- 
able at  will,  who  shall  attend  upon  the  court  during  its 
sessions,  and  said  marshal  shall  be  entitled  to  receive  five 
hundi-ed  dollai's  per  annum,  payable  monthly  by  the  state 
treasurer  upon  the  certificate  of  the  clerk  of  the  court. 

Sec.  951.  Compensation  of  servant  of  supreme  court  to  be 
fixed  by  the  court;  bow  selected  or  reiuoved.  1873- 
'4,  c.  122.     1880,  c.  Gl. 

The  servant  and  messenger  attending  andw^aiting  upon 
the  supreme  court  and  attorney  general's  office  shall  be 
allowed  such  pay  for  his  servi':es.  per  month,  as  may  be 
fixed  and  certiied  to  by  the  justices  of  said  court;  paid 
servant  or  messenger  to  be  selected  or  removed  by  the 
justices  thereof. 


888  COURT— SUPREME.  [Chap.  2i. 

Sec.  952.  Rooms  set  apart  for  preserving'  certain  records. 
1873-'4,  c.  117. 

The  room  in  the  capitol  heretofore  ocinipied  as  the  office 
of  the  sui)erintendent  of  public  works,  is  assigned  to  the 
clerk  of  the  supreme  court  for  the  proper  care  and  safety 
of  records  of  said  court. 

Sec.  953.  Siiprenie  court  to  convene  on  the  first  Mondays 
in  February  and  October.     1881,  c.  178. 

There  shall  be  held  at  the  seat  of  government  of  the 
state  in  each  j^ear  two  terms  of  the  supreme  court,  com- 
mencing on  the  first  Monday  in  February  and  the  first 
Monday  in  October. 

Sec.  954.  To  sit  till  business  is  dispatched;  name  and  style 
of  court;   to    stand   adjourned    if  no  justice   attends 
during-  first  week.    II.  C,  c.  33,  s.  2.     1804,  c.  OOO,  s. 
2.     1805,  c.  674,  s.   1.     1818,  c.  9G2,  s.  2.     1828,  c. 
13.     1842,  c.  15.     184G,  cs.  28,  29. 
The  court  shall  sit  at  each  term  until  all  the  business 
on  the  docket  shall  be  determined  or  continued  on  good 
cause  shown.     The  court  shall  bear  the  name  and  style 
of  "The  Supreme  Court  of  North  Carolina,"  and  shall  be 
a  court  of  record ;  and  the  papers  and  records  belonging 
to  the  clerk's  office  thereof  shall  be  constantly  kept  within 
the  city  of  Raleigh:  Provided,  that  in  case  no  one  of  the 
justices  shall  attend  the  term  during  the  first  week  there- 
of, at  the  end  of  that  time  the  court  shall  stand  adjourned 
till  the  next  term,  and  the  causes  on  the  docket  be  con- 
tinued. 

Sec.  965.  Justices  to  take  and  subscribe  oatlis  to  be  filed, 
&c.    II.  C,  c.  33,  s.  3.     1818,  c.  963,  s.  1. 

The  justices,  before  they  act  as  such  shall,  before  the 
governor  or  some  judicial  officer,  take  and  subscribe  the 
oaths  appointed  for  the  qualification  of  public  officers, 
and  also  an  oath  of  office,  which  shall  be  certified  by  the 
officer  taking  the  same  and  delivered  to  the  secretary  of 
state,  to  be  safely  kept. 

Sec.  956.  Two,  in  case  of  illness,  &c.,to  hold  court.   K.  C, 
c.  33,  s.  4.    1834,  c.  13. 

When  any  one  of  the  justices  is  disabled  from  attend- 
ing, from  illness  or  other  inevitable  cause,  two  of  the 
justices  shall  hold  the  court,  hear  and  determine  causes, 
and  possess  and  exercise  every  other  authority  which  by 
law  may  appertain  to  said  court  as  fully  to  all  intents 


Chap.  24.1  OOURT-SUPKEME.  389 

and  purposes  as  if  all  the  justices  of  the  court  were  pres- 
ent. 

Sec.  957.  Court  to  render  judgment  on  review  of  record; 
if  to  superior  court,  final  judgment  to  be  certified  to 
that  court;   in  criminal   cases,  decisions  certified   to 
court  below;  how  that  court  to  proceed.    K.  C,  c.  33, 
s.  <;,    1799,  c.520,ss.  1,3.     1818,  c.  963,  s.  4.     1830, 
c.  2,  s.  1.     1808,  c.  963,  s.  4. 
In  every  case  the  court  may  render  such  sentence, 
judgment  and  decree  as  on  inspection  of  the  whole  recoid 
it  shall  nppear  to  them  ought  in  law  to  he  rendered  there- 
on; and  it  may  at  its  discretion  make  the  writs  of  execu- 
tion which  it  may  issue  returnable  either  to  the  said 
court,  or  to  the  superior  court:  Provided,  that  when  an 
execution  shall  be  made  returnable  as  last  mentioned,  a 
certificate  of  the  final  judgment  of  the  supreme  court 
shall  always  be  transmitted  to  the  superior  court  afore- 
said, and  there  be  i-ecorded:  Provided  further,  that  the 
said  superior  court  may  enforce  obedience  to  the  execu- 
tion, and  in  the  event  of  its  not  being  executed  may  issue 
new  or  furthei-  execution  or  process  thereon  in  the  same 
manner  as  though  the  first  execution  had  issued  from 
the  said  superior  court:  Provided  also,  that  in  criminal 
cases  the  decision  of  the  supreme  court  shall  be  certified 
to  the  superior  court  from  which  the  case  was  transmit- 
ted, which  superior  court  shall  proceed  to  judgment  and 
sentence  agreeable  to  the  decision  of  the  suj)reme  court 
and  the  laws  of  the  state. 

Bcthca  V.  JlcLennoD,  1  Ircil.,  523;  Runyon  v.  Anderson,  3  Irod.,  586; 
Stnlc  V.  :McIiilyre,  1  Jon.,  1 ;  Am.  Bible  Society  v.  Executors  of  Ilaliistcr, 
1  Job.  Eq.,  10;  Stiitc  v.  Jacobs,  2  Jon.,  53;  Smith  v.  Cheek,  5  Jon..  213; 
CarooD  V.  Rogers,  6  Jon.,  240;  Jones  v.  McLiuiiine,  7  Jou.,  392;  Rodman 
V.  Davis,  8  Jon..  134;  Gates  v.  Whitfield,  8  Jon..  266;  Grissett  v.  Smith, 
Phil.,  297;  Greenlee  v.  Suddcrth,  65 — 470;  Rush  v.  Steamboat  Co.,  68—72; 
State  V.  I\etcUey,  71 — 147;  Simmons  v.  Fescue,  81—86;  McDamel  v.  Pol- 
lock, 87—503. 

Sec.  958.  Clerk  of  the  supreme  court,  his  bond  and  oath; 
where  office  to  be  kept.  K.  C,  c.  33,  s.  9..  1813,  c. 
839,  s.  3.     1818,  c.  963,  s.  5.     1846,  c.  38,  s.  3. 

Before  undertaking  his  duties,  the  clerk  of  the  supreme 
court  shall  enter  into  bond,  with  sufficient  surety,  pay- 
able to  the  state  of  North  Carolina,  in  the  sum  of  fifteen 
thousand  dollars,  conditioned  for  the  faithful  discharge 
of  his  duties  and  for  the  safe  keeping  of  all  records  com- 
mitted to  his  custody,  which   bond   shall  be  lodged  with 


390  COUBT— SUPREME.  [Chap.  24. 

the  secretary  of  state;  and  he  shall  also  before  said  jus- 
tices, or  one  of  them,  take  the  oaths  which  are  prescribed 
for  clerks  of  the  superior  court,  and  shall  keep  his  office 
in  the  city  of  Raleigh. 


Sec.  959.  Clerk  to  record  such  parts  of  proceedings  as  the 
court  shall  direct.    K.  C,  c.  33,  s.  11.    1831,  c.  20,s.  1. 

The  court  may  order  the  clerk  to  record  such  parts  of 
the  record  of  cases  as  it  may  deem  necessary. 

Sec.  960.  Clerk's  pay  for  such  services.  K.  C,  c.  33,  s.  13, 
1831,  c.  20,  s.  3. 

In  estimating  the  allowance  to  the  clerk  for  making  the 
record  as  directed,  the  justices  shall  not  exceed  the  sum 
of  thirty  cents  for  each  page  recorded. 

Sec.  961.  Justices  to  prescrihe  rules  of  practice  for  su- 
preme and  superior  courts.  K.  C,  c.  33,  s.  13.  C.  C. 
P.,s.  394.    1818,  c.  963,  s.O. 

The  justices  of  the  supreme  court  shall  prescribe  and 
establish  from  time  to  time  rules  of  practice  for  that 
court  and  also  for  the  superior  court.  The  cleik  shall 
certify  to  the  judges  of  the  superior  court  the  rules  of 
practice  for  said  court,  to  be  entered  on  the  records 
thereof  in  each  county. 

Johnson  v.  Sedbcny,  65—1;  Perry  v.  Morris;  65 — 221;  Rules  of  the  Su- 
preme Court,  80—488,  81—609,  83— G89. 

Sec.  963.  On  appeal  from  interlocutory  judgment,  &c.,  no 
judgment  to  be  entered;  opinion  with  instructions  to 
be  certified  to  court  below.  R.  C,  c.  33,  s.  14.  1831, 
c.  30,  s.  3. 

When  an  appeal  shall  be  taken  to  the  supreme  court 
from  any  interlocutory  judgment,  the  supreme  court 
shall  not  enter  any  judgment  reversing,  affirming  or  mod- 
ifying the  judgment,  order  or  decree  so  appealed  from, 
but  shall  cause  their  opinion  to  be  certified  to  the  court 
below,  with  instructions  to  proceed  uix)n  such  order, 
judgment  or  decree,  or  to  reverse  or  modify  the  same  ac- 
cording to  said  opinion,  and  tlie  court  below  shall  enter 
upon  its  records  the  opinion  at  length,  and  proceed  in  the 
cause  according  to  the  instructions. 

arissett  v.  Smitli,  Phil.,  297. 


Chap.  24.J  COURT-SUPREME.  391 

Sec.  OC3.  Exhibits  in  cases  proved  by  witnesses  to  be  cx- 
aniincrt  by  supreme  court;  rules  as  to  such  witnesses. 
B.  C,  c.  33,  s.  20.  K.  C,  c.  33,  s.  15.  1818,  c.  902,  s. 
5.     l'820,  c.  1043.     1848,  C.30. 

Exhibits  or  other  documents  relative  to  cases  pending 
in  the  supreme  court  may  be.  proved  by  the  parol  testi- 
mony of  witnesses  to  be  examined  in  said  court  i"  the 
same  manner  and  under  the  same  lailes  as  such  exhibits 
or  documents  may  be  proved  in  the  superior  court;  and 
suitors  iu  said  court  may  have  subpoenas  to  enforce  the 
attendance  of  witnesses,  who  shall  be  liable  to  the  same 
penalties  and  actions  for  non-attendance,  and  be  entitled 
to  the  same  pay  for  traveling,  ferriage  and  attendance 
as  witnesses  in  the  superior  court:  Frovided,  that  wit- 
nesses attending  the  supreme  court  shall  be  taxed  in  the 
bill  of  costs  and  paid  by  the  party  on  whose  behalt  they 
may  be  summoned. 

Ray  V.  Riiy,  6  Ircd.  Eq.,  055. 

Sec.  064.  Justices  to  deliver  their  opinions  in  writingr;  no 
certificate  of  decision,  nor  execution  to  be  issued,  until 
the  opinion  of  the  court  is  delivered  to  the  clerk.  B.  C, 
c.  33,  s.  1«.    1810,  c.  794. 

The  justices  shall  deliver  their  opinions  or  judgments  in 
writing  and  the  clerk  shall  make  no  entry  upon  the 
records  of  the  court  that  any  cause  pending  therein  is 
decided,  nor  give  to  any  person  a  certificate  of  such  de- 
cision nor  issue  execution  in  such  suit,  until  after  the 
opinion  of  the  court  shall  have  been  delivered  pubhcly 
in  open  court,  and  a  written  copy  of  the  same  opinion 
shall  have  been  delivered  to  the  clerk  ;  which  shall  after- 
wards be  filed  among  the  records  of  the  court  and  pub- 
lished in  the  reports  of  the  decisions  made  by  the  court. 

State  V.  Ketchey,  71—147. 

Sec.  965.  Court  may  amend  any  proceeding ;  may  amend 
by  making  parties ;  may  allow  further  testimony  to  be 
taken.  K.  C,  c.  33,  s.  17.  1777,  c.  115,  s.  75.  1785,  c. 
233,  s.  2.     1792,  c.  360,  s,  1.     1831,  c.  46,  s.  2. 

The  supreme  court  shall  have  power  to  amend  any 
process,  pleading  or  proceeding  either  in  form  or  substance 
for  the  purpose  of  furthering  justice,  on  such  terms  as 
shall  be  deemed  just  at  any  time  before  final  judgment. 
Also  to  amend  by  making  proper  parties  to  any  case 
where  the  court  may  deem  it  necessary  and  proper  for 
the  purposes  of  justice  and  on  such  terms  as  the  court 
may  prescribe.     And  also  whenever  it  shall  appear  nee- 


392  COURT  -SUPREME.  [Chap.  24. 

essary  for  the  purposes  of  justices,  to  allow  and  direct  the 
taking  of  further  testimony  in  any  case  which  may  be 
pending  in  said  court  under  such  rules  as  may  be  pre- 
scribed, or  the  court  may  remand  the  case  to  the  intent 
that  amendments  may  he  made,  further  testimony  taken 
or  other  proceedings  had  in  the  court  below. 

Kcut  V.  Bottoms,  3  Jon.  Eq.,  GO;  Emmons  v.  McKesson,  5  Jon.  Eq.,  93; 
Fleming  v.  Muipli,  6  Jon.  Eq.,  59. 

Sec  9G0.  "When  petition  to  re-hear  liual  judg'mcnt  may  be 
filed,  «&o.    K.  C,  c.  33,  s.  18. 

A  petition  to  re-hear  may  be  filed  during  the  vacation 
succeeding  the  term  of  the  court  at  which  the  judgment 
was  rendered,  or  within  twenty  days  after  the  commence- 
ment of  the  succeeding  term,  and  upon  the  filing  of  such 
petition  the  chief  justice,  or  either  of  the  associate  justices, 
may,  upon  such  terms  as  he  sees  fit,  make  an  order  re- 
straining the  issuing  of  an  execution,  or  the  collection 
and  payment  of  the  same,  until  the  next  term  of  said 
coui't,  or  until  the  petition  to  rehear  shall  have  been  de- 
termined. 

Mauncy  v.  Gidncy,  86 — 717. 

Sec.  967.  Suits  may  be  dismissed  for  failure  to  prosecute 
after  notice.    K.  C,  c.  33,  s.  20.     1848,  c.  28,  s.  2. 

Suits  and  appeals  pending  in  the  su|)reme  court  may 
be  dismissed  on  failure  to  prosecute  the  same,  after  a 
rule  obtained  for  that  purpose  and  served  on  the  plaint- 
iff or  appellant,  his  agent  or  attorney,  at  least  thirty 
days  before  the  term  next  ensuing  that  of  entering  the 
rule;  when,  if  the  party  shall  fail  to  ]irosecute  his  suit  or 
appeal,  the  court  shall,  at  the  election  of  the  adverse 
paiiy,  dismiss  the  suit  or  appeal  at  the  costs  of  the  plaint- 
iff or  appellant,  or  proceed  to  hear  and  determine  it. 
Thompson  v.  Burnett,  0  Jon.,  480;  Burnett  v.  Thompson,  7  Joa.,  407. 

Sec.  068.  Certificates  of  decisions  transmitted  to  courts 
below  on  the  rise  of  tlie  court;  execution  for  costs  in 
tlic  supreme  and  superior  courts  is  issued  from  those 
courts  respectively.    R.  C,  c.  33,  s.  21.    1820,  c.  1070. 
1825,  e.  1282.     1842,  c.  1,  s.  3. 
The  clerk  shall  immediately  after  the  rise  of  each  term 
thereof  transmit  by  some  safe  hand  or  by  mail  to  the 
clerks  of  the  superior  court  certificates  of  the  decisions  of 
the  supreme  court  in  cases  sent  from   said  court;  and 
thereupon  the  said  clerks  respectively  shall  issue  execu- 
tion for  the  costs  incurred  in  the  courts  from  which  the 


Chap.  25.1    CRIMES  AND  PUNISHMENTS.  393 

cases  were  sent:  and  the  clerk  of  the  s^pi-e"^^,^«"ft  shall 
issue  execution  for  the  costs  nicurred  m  that  couit,  ui- 
cludlntall  publications  in  newspapers  made  in  the  prog- 
Jess  of  the  fause  in  that  court,  and  by  order  of  the  same 
nnd  all  postage  of  letters  which  concern  tlie  transfer  of 
ori-h  a  Speis     And  if  the  clerk  shall  fail  for  the  space 
ofYwent^ydaysto  perform  the  duty  herem  enjomed  o 
transmitting  the  said  certificates  ot  decisions  he  shall 
fmf elt  and  pay  to  the  party  or  parties  in  whose  favor  the 
supreme  coirt  shall  have  decided,  one  hundred  doUars. 
Sparks  V.  Wood,  1  D.  &B.,  489. 

Sec.  969.  In  the  absence  of  the  attorney  general  court  to 
appoint  counsel  for  the  state.    K.  C,  33,  s.  — .    1»40, 

If 'the'  attorney  general  should  fail  at  any  term  of  the 
supreme  court  to  attend  to  the  business  which  by  law  is 
assigned  him,  the  court  may  appoint  some  counsel  learned 
in  the  law  to  discharge  his  duties  during  the  term. 


CHAPTER  TWENTY-FIVE. 
CRIMES  AND  PUNISHMENTS. 


Section. 

970.  Abandonmentof  wife  and  chil- 
dren by  husband. 

971.  Abandonment,  failure  to  pro- 
vide support  presumptive 
evidence  thereof. 

972.  Adequate  support,  failure  of 
husband  to  provide,  for  wife 
and  children. 

973.  Abduction  of  children. 

974.  Abduction;  conspiracy. 

975.  Abortion,  felony  to  administer 
to  a  woman  pregnnut  any 
medicine  to  destroy  her  child, 
or  to  use  an  instrument  with 
the  same  intent. 

976.  Abortion,  misdemeanor  to  ad- 
minister medicine  to  pregnant 


Section. 

woman,  or  use  any  instru- 
ment with  intent  to  procure 
miscarriage. 

977.  Accessories  to  felonies  before 
the  fact,  when,  where  and  how 
tried  and  punished. 

978.  Accessories  to  felonies  after 
ihc  fact,  when,  where  and  how 
tried  and  punished. 

979.  Accessories,  how  proceeded 
against  and  punished  where 
principal  is  not  attainted. 

980.  Accessories  before  the  fact,  how 
punished. 

081.  Advertisements  and  legal 
notices,  dc--truction  or  deface- 
ment of,  punished. 


394 


CEIMES  AND  PUNISHMENTS.     [Chap.  25. 


Section. 

983.  Adulterated  liquors,  penalty 
for  making  or  selling. 

983.  Adulterated  and  poisonfiu'* 
liquors,  penalty  for  manufac" 
turing  or  selling. 

984.  Adulterating  liquois,  penalty 
for  selling  recipes  for. 

985.  Arson  and  other  burnings, 
punisliment  for. 

986.  Artifical  islands  or  lumps;  pen- 
alty for  erecting. 

987.  Assault,  punishment  therefor. 

988.  Bigamy,  what  and  how  pun- 
ished. 

989.  Blackmailing,  by  accusation, 
threatening  letter  or  other 
threats. 

990.  Bribery  of  jurors. 

991.  Bribery;  officers  receiving 
bribes,  guilty  of  felony. 

993.  Bribery;  offering  a  bribe  pun- 
ished. 

993.  Bridges,  misdemeanor  to  de- 
molish, break  or  injure. 

)94  Burglary,  how  punished. 

995.  Burglary,  breaking  out  of 
dwelling  house  in  the  night 
time. 

996.  Burglary,  breaking  into  cer- 
tain houses  or  buildings,  amis- 
demeanor. 

997.  Burglary  or  other  felony,  the 
intent  to  commit,  an  infam- 
ous crime. 

998.  Buying  and  selling  offices. 

999.  Castration  with  malice  afore- 
thought. 

1000.  Castration  or  maiming  without 
malice  aforethought. 

1001.  Cattle  and  live  stock,  nusmark- 
ing,  a  misdemeanor. 

1002.  Cattle  and  live  stock,  the  wil- 
ful killing  or  injuiing  of,  run- 
ning at  large  in  the  rauge. 

1003.  Cattle  andlive  stock,  injury  to, 
in  unlawful  inclosurc. 

1004.  Concealing  birth  of  child. 

1005.  Concealed  weapons,    the   car- 


Section. 

rying   of    unlawfully,    a   mis- 
demeanor. 

1006.  Cotton,. sale  of  witljiu  certain 
hours  prohibited. 

1007.  Cotton,  weighing  of,  regulated 

1008.  Cotton  weigher's  oath,  tin 
failure  of  the  wcighi-r  to  make 
subscribe  and  file  with  the  re 
gister  of  deeds,  a  misdemca 
nor. 

1009.  County  claims,  speculation  in, 
indictable. 

1010.  Crime  against  nature. 

1011.  Directors,  commissioners  and 
other  public  officers  forbidden 
to  become  contractors. 

1013.  Dueling,  sending,  accepting  or 
bearing  a  challenge,  a  misde- 
meanor. 

1013.  Dueling,  when  death  ensues, 
murder. 

1014.  Embezzlement,  punished  as 
larceny. 

1015.  Embezzlement  of  state  bonds 
or  other  property  of  the  state, 
by  state  officers  or  employees. 

1016.  Embezzlement  of  trust  funds 
by  public  officers,  felony. 

1017.  Embezzlement  liy  treasurer  of 
benevolent  or  religious  institu- 
tion, a  misdemeanor. 

1018.  Embezzlement  by  officer  of 
railroad  company,  felony. 

1019.  Embezzlement, conspiracy  with 
officer  of  railroad. 

1030.  Embezzlement,  sufficiency  of 
indictment  for. 

1031.  Escape,  prLson-breach  by  crim- 
inal. 

1023.  Escape,  officer  indictable  for, 
what  necessary  for  state  to 
prove. 

1033.  Escape,duty  of  solicitor  in  such 
a  case. 

1034.  Fal.se  lights,  holding  out,  on 
or  near  sea  shore. 

1035.  False  pretence  and  false  token, 
cheating  by. 


Chap.  25.]    CRIMES  AND  PUNISHMENTS. 


395 


Section.  1 

1036.  False  pretence,  obtaining  sig- 
nature by. 

1027.  False  pretence,  obtaining  ad- 
vances npon  representation  of 
ownership  of  property,  and 
promising  to  apply  the  same  to 
payment  of  the  debt,  and  fail- 
ing to  do  so. 

1028.  Forcible  entry  and  detainer. 

1029.  Forgery,  how  punished. 

1030.  Forgery  and  counterfeiting  of 
bank  notes,  checks  and  other 
securities. 

1031.  Forgery  and  counterfeiting, 
passing,  or  attempting  to  pass, 
notes  forged  or  counterfeited. 

1033.  Forgery  and  counterfeiting  of 
certificates  of  stock  by  officer 
or  agent  of  a  corporation. 

1033.  Forgery  and  counterfeiting, 
selling  forged  judgments 
bonds  or  other  securities. 

1034.  Forgery  of  names  to  petitions 
and  certain  papers  ;punishment 
therefor,  and  for  using  such 
forged  paper. 

1035.  Forgery  and  counterfeiting  of 
foreign  coin,  passing,  or  at- 
temping  lo  pass,  such  coin. 

1036.  Forgery  and  counterfeiting, 
having  in  possession  instru- 
ments for  counterfeiling  for- 
eign coin. 

1037.  Forgery  and  counterfeiting, 
fraudulently  connecting  dif- 
ferent parts  of  several  genuine 
bank  notes,  or  other  instru- 
ments. 

1038.  Forgery  and  counterfeiting  of 
private  marks,  stamps  or  la- 
bels. 

1039.  Forgery  and  counterfeiting; 
penalty  for  selling  merchan- 
dise with  forged  or  counter- 
feited marks,  stamps  or  labels. 

1040.  Forgery  and  counterfeiting, 
fraudulent  use  of  brands. 

1041.  Fornication  and  adultery. 


Section. 

1043.  Gambling,  betting  at  cards  in 
tavern  or  retail  house,  a  mis- 
demeanor. 

1048.  Gambling,  keeper  of  tavern  or 
liquor  shop,  allowing  games 
to  be  played  in  his  house, 
guilty  of  a  misdemanor. 

1044.  Gambling,  faro -banks  and 
tables  prohibited. 

1045.  Gambling,  gaming  tables  of 
every  kind  prohibited. 

1046.  Gambling,  person  allowing 
gaming  tables  on  his  premises 
indictable. 

1047.  Gambling,  lotteries  forbidden. 

1048.  Gambling,  sale  of  lottery  tick- 
ets forbidden. 

1049.  Gambling,  justices  of  the 
peace,  and  other  officers,  di- 
rected to  destroy  gaming 
tables. 

1050.  Gambling,  justices,  and  other 
judicial  officers  authorized  to 
summon  witnesses  touching 
the  whereabouts  of  gaming 
tables. 

1051.  Gambling,  money  or  property 
bet  at  any  prohibited  game, 
liable  to  be  seized. 

1052.  Gambling,  persons  opposing 
destruction  of  gaming  tables 
or  seizure  of  moneys  staked 
on  forbidden  games,  how  pun- 
ished. 

1053.  Ginseng,  penalty  for  digging 
between  April  and  September. 

1054.  Highwiiys  and  public  roads, 
overseer  of,  neglecting  his 
duty. 

1055.  Homicide,  manslaughter,  pun- 
ishment therefor. 

1056.  Homicide,  manslaughter,  pun- 
ishment for  second  offence. 

1057.  Homicide,  murder,  its  punish- 
ment. 

1058.  Hunting  for  deer  by  fire  light. 

1059.  Hunting  by  fire  light,  accom- 
plices. 


396 


CRIMES  AND  PUNISHMENTS.     [Chap.  25. 


Section. 

1060.  Incest,  carnal  intercourse  be- 
twrcu  grand  p;irent  ami  grand 
child, parent  and  child, brotlier 
and  ^ister,  a  felony. 

1061.  Incest,  carnal  intercourse  be- 
tween uncle  and  niece, nephew 
and  aunt,  a  misdemean- 
or. 

1063.  Injuries  to  houses,  churches 
and  fences. 

1063.  Landmarks,  penally  for  alter- 
ing or  removing. 

1064.  Larceny  or  robbery  of  bank 
notes  and  other  securities. 

1065.  Larceny,  by  servant  of  mas- 
ter's goods. 

1066.  Larceny,  horse-stealing. 

1067.  Larceny,  stealing  liorse  for 
temporary  use  or  purpose. 

1068.  Larceny,  the  felonious,  icjury 
to,  or  piu'suit  of,  live  stock, 
witli  intent  to  appropriate  the 
same,  a  misdemeanor, 

1069.  Larceny  of  growing  crops  or 
vegetables. 

1070.  Larceny  of  wood,  or  other 
property  growing  or  being 
upon  land. 

1071.  Larceny  or  obliteration  of 
public  records,  or  fraudulent 
removal  of  registration  books; 
unnecessary  to  allege  owner- 
ship or  value. 

1072.  Larceny,  fraudulent  conceal- 
ment or  destruction  of  wills. 

1073.  Larceny,  fraudulent  disposi- 
tion by  clerk,  or  other  custo- 
dian of  the  public  laws,  re- 
ports of  supremo  court,  or 
other  public  documents,  a  mis- 
demeanor. 

1074.  Larceny,  receivers  of  stolen 
goods,  punishment  of. 

1075.  Larceny,  distinction  between 
grand  and  petit  larceny  abol- 
ished. 

1076.  Liquor  selling,  retailing  with- 
out license. 


Section. 

1077.  Liquor  selling  to  minors  for- 
bidden. 

1078.  Liquor  selling  to  minors;  the 
father,  mother,  guardian  and 
cmplo3'cr  of  minor  may  sue 
liquor  dealer  for  damages. 

1079.  Liquor  selling  within  two 
miles  of  public, political  speak- 
ings prohibited. 

1080.  Jlaiming,  with  malice  afore- 
thought. 

1081.  Malicious  injury  to  real  prop 
erty. 

1082.  Malicious  injury  to  persona) 
l>roperiy. 

1083.  Jlarriages,  unlawful  with  fe- 
males under  fourteen  years  of 
age  without  consent  of  father. 

1084.  Marriages,  unlawful  between 
whiles  and  negroes. 

1(18.3.  Marriages,  unlawful  for  regis- 
ter of  deeds,  clergymen  and 
justices  of  the  peace  to  con- 
sent to  the  marriage  of  a  ne- 
gro to  a  white  person. 

1086.  Mills,  owners  of,  to  keep  up 
bridges  over  ditches,  drains 
and  canals. 

1087.  Mills,  the  destruction  or  ob- 
struction of  dams,  cuuals  or 
water  channels,  connecting 
with  a  mill,  factory  or  machine 
works,  indictable. 

1088.  Monuments  and  tombstones, 
uidawfulto  remove  or  deface. 

1089.  Mortgaged  propertj-;  unlawful 
to  di.'^posc  of;  suflieiency  of 
indictment  and  proof. 

1090.  Odicers  failing  to  discharge 
their  duties,  may  be  indicted 
and  removed  from  office. 

1091.  Peddling  without  license. 
1093.  Perjury,  its  punishment. 

1093.  Perjury,  suboriiation  of. 

1094.  Poison,  unlawful  to  put  in 
streams  for  purpose  of  catch- 
ing, killing  or  driving  away 
fisii. 


Chap.  25.]    CRIMES  AND  PUNISHMENTS.  397 


Section. 

1095.  Political  societies,  secret,  pro- 
liibiled. 

1096.  Punishment  for  felonies  not 
specified. 

1097.  Punisliment  for  misdemeanors 
not  specilied. 

1098.  li'iilroads,  planli  roads,  turn- 
pikes and  canals,  maliciously 
destroying,  obstructing  and 
injuring,  penalty  wheu  death 
ensues,  and  when  not. 

1099.  Railroads,  wilful  injury  to, 
without  malice. 

1100.  Railroads,  shooting  at  or 
throwing  into  cars,  locomo- 
tives or  trains,  punishment. 

1101.  Rape  punished  with  death. 
1103.  Rape,  assault  with   intent  to 

commit,  a  misdemeanor. 

1103.  Rape,  carnal  knowledge  of  a 

married  woman  by  fraud  in 
personating  her  husband  de- 
clared to  be  felony. 

1104.  Rape,   assault  with   intent   to 

have   carnal    knowledge  of 
married  woman  by  fraud  in 
personating   her    husband,  I 
how  punislied. 

1105.  Rape  and  buggery,  what  proof 

sufficient  in. 

1106.  Rebellion  or  insurection  against 

the  slate,  a  high  crime. 

1107.  Rebellion  or  insurrection,  con- 

spiracy to  destroy  the  gov- 
ernment of  the  state  by. 

1108.  Seamen,  enticing  from  vessels, 

a  misdemeanor. 

1109.  Seamen,  unlawful  to  secrete  or 

harbor  those  who  have  de. 
serted. 

1110.  Seamen,  justices  of  the  peace 

authorized  to  issue  search 
warrants  for  those  who  have 
deserted. 


Section. 

1111.  Seamen,  either  party  may  ap- 
peal, justice  to  reduce  to 
writing  testimony  of  all 
material  witnesses,  and  re- 
turn to  appellate  court,  fees 
of  justice. 

1113.  Sheriffs,  constables  or  other  of- 
ficers failing  to  execute  pro- 
cess, making  a  false  return 
thereon,  or  refusing  to  dis- 
charge any  other  duties,  in- 
dictable. 

1113.  Slander  of  women  by  charge 
of  incontinency,  penalty. 

1114.  Springs,  wells  and  cisterns, 
wilful  injuring,  penalty. 

1115.  Sunday,  hunting  on,  prohibit- 
ed. 

IIIG.  Sunday,  fishing  on  with  seines 
or  nets  prohibited;  punish- 
ment. 

1117.  Sunday,  sale  of  intoxicating 
liquors  on,  a  misdemeanor. 

1118.  Telegraph,  telephone  poles  or 
wires,  injury  to,  a  misde- 
meanor. 

1119.  Treasurer  of  the  state,  fraudu- 
I  lent  entries  and  statements 

by,  a  misdemeanor. 

1120.  Trespass  on  lands  without  a 
license,  after  being  forbid- 
den, a  misdemeanor. 

1131.  Trespass  on  public  lands,  pen- 
alty therefor. 

1133.  Trout,  unlawful  to  catch 
mountain  Irout  with  soine 
at  all  times;  the  taking  by 
shooting  or  otherwise  be- 
tween the  fifteenth  day  of 
October  and  the  thirteenth 
day  of  December,  a  misde- 
meanor. 

1123.  Water  courses,  obstruction  of, 
penally. 


398  CRIMES  AND  PUNISHMENTS.     [Chap.  25. 

Sec.  970.  Abaiulonment  of  wife  and  children  by  husbaiKl. 
1868-'9,  e.  209,  s.  1.  1873-'4,  c.  176,  s.  lO.  1879,  c. 
93. 

If  any  husband  shall  wilfully  abandon  his  wife  without 
providing  adequate  support  for  such  wife,  and  the  chil- 
dren which  he  may  have  begotten  upon  her,  he  shall  be 
guilty  of  a  misdemeanor. 

State  V.  Deaton,  (33 — 496;  State  v.  Brown,  67 — 470;  State  v.  Dunston,  78 
—418;  Slate  v.  Davis,  79—603. 

Sec.  971.  Abandonment,  failure  to  provide  support  pre- 
sumptive evidence  thereof.     1868-'9,  c.  209,  s.  3. 

If  the  fact  of  abandonment  and  failure  to  provide  ade- 
quate support  of  wife  and  children  shall  be  proved,  or 
while  being  with  such  wife,  neglect  by  the  husband  to 
provide  for  the  adequate  support  of  such  wife  or  children, 
shall  be  proved,  then  the  fact  that  such  husband  neglects 
applying  himself  to  some  honest  calling  for  the  support 
of  himself  and  family,  but  is  found  sauntering  about,  en- 
deavoring to  maintain  himself  by  gaming  or  other  undue 
means,  or  is  a  common  frequenter  of  drinking  houses,  or 
is  a  known  common  drunkard,  shall  be  presumptive 
evidence  that  such  abandonment  and  neglect  is  wilful. 

Sec.  973.  Adequate  support,  failure  of  husband  to  pro- 
vide for  wife  and  children.  lS68-'9,  c.  309,  s.  2. 
1873-'4,  c.  176,  s.  11.    1879,  c.  93. 

If  any  husband,  while  hving  with  his  wife  shall  wil- 
fully neglect  to  provide  adequate  support  for  such  wife 
or  the  children  which  he  has  begotten  upon  her,  he  shall 
be  guilty  of  a  misdemeanor. 

State  V.  Davis,  79—603. 

Sec.  973.  Abduction  of  children.     1879,  c.  81. 

Any  one  who  shall  abduct,  or  by  any  means  induce  any 
child  under  the  age  of  fourteen  years,  who  shall  reside 
with  the  father,  mother,  imcle,  aunt,  brother,  or  elder 
sister,  or  shall  reside  at  a  school,  or  be  an  orphan  and  re- 
side with  a  guardian,  to  leave  such  person  or  school, 
shall  be  guilty  of  a  crime,  and  on  conviction  shall  be 
fined  or  imprisoned  at  the  discretion  of  the  court,  or  may 
be  sentenced  to  the  penitentiary  for  a  period  not  exceed- 
ing fifteen  years. 

Sec.  974.  Abduction  ;  conspiracy.    1879,  c.  81,  s.  2. 

Every  one  who  shall  conspire  to  abduct,  or  by  any 


Chap.  25.]    CRIMES  AND  PUNISHMENTS.  399 

means  shall  induce  any  child  under  tlie  age  of  fourteen 
years,  who  shall  reside  with  any  of  the  persons  aforesaid, 
or  at  school,  to  leave  the  persons  aforesaid  or  the  schoo 
shall  be  guilty  of  a  like  offence,  and  on  conviction  shall 
be  punished  as  prescribed  in  the  precednig  section  :  Pro^ 
vided,  that  no  one  who  may  be  a  nearer  blood  relation  to 
the  child  than  the  persons  named  m  said  section  shall  be 
indicted  for  either  of  said  offences. 

State  V.  Sullivan,  85—506. 

Sec  975.  Abortion,  felony  to  administer  to  a  woman 
pregnant  any  medicine  to  destroy  her  child,  or  to  iise 
an  instrument  with  the  same  intent.     1881,   c.  Sol, 

Every  person  who  shall  wilfully  administer  to  any 
woman  either  pregnant  or  quick  with  child,  or  prescribe 
for  any  such  woman,  or  advise  or  procure  any  such 
woman  to  take  any  medicine,  drug  or  substance  what- 
ever, or  shall  use  or  employ  any  instrument  or  other 
mealis  with  intent  thereby  to  destroy  said  child,  unless 
the  same  shall  have  been  necessary  to  preserve  the  lite  ot 
such  mother,  shall  be  guilty  of  a  felony,  and  imprisoned 
in  the  penitentiary  for  not  less  than  one  year  or  more 
than  ten  years,  and  be  fined  at  the  discretion  of  the 
court. 

Sec.  976.  Abortion,  misdemeanor  to  administer  medicine 
to  pregnant  woman  or  use  any  instrument  with  intent 
to  procure  miscarriage.    1881,  c.  351,  s.  3. 

Every  person  who  shall  administer  to  any  pregnant 
woman,  or  prescribe  for  any  such  woman,  or  advise  and 
procure  such  woman  to  take  any  medicine,  di-ug  or  any- 
thing whatsoever,  with  intent  thereby  to  procure  the 
misc'arriage  of  any  such  woman,  or  to  injure  or  destroy 
such  woman,  or  shaU  use  any  instrument  or  apphca,tion 
for  any  of  the  above  purposes,  shall  be  guilty  of  a  misde- 
meanor, and  imprisoned  in  the  jail  or  penitentiary  tor 
not  less  than  one  year  nor  more  than  five  years,  and  be 
fined,  at  the  discretion  of  the  court. 

Sec.  977.  Accessories  to  felonies  before  the  fact,  when, 
where  and  how  tried  and  punished.  B.  C,  c.  34,  s.  53, 
1797,  c.  485,  s.  1.    1853,  c.  58. 

If  any  person  shall  counsel,  procure  or  command  any 
other  person  to  commit  any  felony,  whether  the  same  be 
a  felony  at  common  law  or  by  virtue  of  any  statute,  the 
person  so  counseling,  procuring,  or  commanding,  shall 


400  CRIMES  AND  PUNISHMENTS.     [Chap.  25. 

be  guilty  of  felony,  and  may  be  indicted  and  convicted, 
eitlier  as  an  accessory  before  tbe  fact  to  the  priiacipal 
felony,  tooether  with  tbe  principal  felon,  or  after  the 
conviction  of  the  jirincipal  felon;  or  may  be  indicted 
and  convicted  of  a  substantive  felony,  whether  the  prin- 
cipal felon  shall  or  shall  not  have  been  previously  con- 
victed, or  shall  or  shall  not  be  amenable  to  justice,  and 
may  be  punished  in  the  same  manner  as  any  accessory 
before  the  fact  to  the  same  felony,  if  convicted  as  an  ac- 
cessory, may  be  punished  ;  and  the  ofJence  of  the  peison 
so  counseling,  procuring,  or  commanding,  howsoever  in- 
dicted, may  be  inquired  of,  tried,  determined  and  pun- 
ished by  any  court  which  shall  have  jurisdiction  to  tiy 
the  principal  felon,  in  the  same  manner  as  if  such  offence 
had  been  committed  at  the  same  place  as  the  principal 
felony  or  where  the  principal  felony  is  triable,  although 
such  offence  may  have  been  committed  at  any  place 
within  or  without  the  limits  of  the  'jtate;  and  in  case  the 

Erincipal  felony  shall  have  been  committed  within  the 
ody  cf  any  county,  and  the  offence  of  counsehng,  pro- 
curing or  commanding  shall  have  been  committed  within 
the  body  of  any  other  county,  the  last  mentioned  offence 
may  be  inquired  of,  tried,  determined,  and  punished  in 
either  of  such  counties :  Provided,  that  no  person  who 
shall  be  once  duly  tried  for  any  such  offence,  whether  as 
an  accessory  before  the  fact,  or  as  for  a  substantive 
felony,  shall  be  liable  to  be  again  indicted  or  tried  for  the 
same  offence. 

State  V.  Mann,  1  Hay.,  4:  State  v.  Graff,  1  Mur.,  270;  Statev.  Barden, 
1  Dev.,  518;  Slate  v.  Hardin,  2  D.  &  B.,  407;  State  v.  Hildrcth,  9.  Ired., 
440;  State  v.  Check,  13  Ired.,  114;  State  v.  Ludwick,  Phil.,  401;  State  v. 
Dewer,  Go— 572;  Slate  v.  Davis,  87—514. 

Sec.  978.  Accessories  to  felonies  after  the  fact,  when, 
where  and  how  tried  and  punished.  R.  C,  c.  34,  s.  64. 
1797,  c.  485,  s.  1.     1853,  c.  58. 

If  any  person  shall  become  an  accessory  after  the  fact 
to  any  felony,  whether  the  same  be  a  felony  at  common 
law  or  by  virtue  of  any  statute  or  statutes  made,  or  to  be 
made,  such  person  shall  be  guilty  of  a  misdemeanor,  and 
may  be  indicted  and  convicted  together  with  the  princi- 
pal felon,  or  after  the  conviction  of  the  principal  felon, 
or  may  be  indicted  and  convicted  for  such  misdemeanor, 
whether  the  principal  felon  shall  or  shall  not  have  been 
previously  convicted,  or  shall  or  shall  not  be  amenable  to 
justice,  and  shall  be  punished  by  imprisonment  in  the 
penitentiary  or    county    jail,    for    not  less    than    four 


Chap.  25.]    OEIMES  AND  PUNISHMENTS.  401 

months  nor  more  than  ten  f^^j;  and  ™ay  also  be  fined 
in  the  discretion,  of  tl^^^f  "f ;  -i^^'lJ^^nSneS  and  pun- 
B^;^^r wS^li^t^l^-dictic.  Ji^ 
isneu  oy  duj-  manner  as  if  the  act,  by  lea- 

nr  tried  for  the  same  offence. 
VnTv   Cb  tters  Dev.,  49;  State  v.  Smith.  3  Ircd.,  402;  State  v.  Dun- 
Statev   Clntte.n   .ue  '  ^^^^     339.   gt^te  v.  Beatty,   Phil.. 

'^l^::';^^^,  401';    State  v.Winton.rhU.,19G;   State  v. 

Tyler.  85—509. 

sec.  979.  Accessories,  how  l-«««f<'.«*;^^»''^'"%^f  gP^s' 
ished  where  priucipal  is  not  attainted.    K.  C,  c.  34,  s. 

Intrderthat  accessories  "^^  }'^, ,^"ftf'*nnv''nr-nci^.^i 
ished  in  all  cases,  it  is  enacted,  Jl^at  if  a  y  pr.nap. 
^ff^nriov  chnll  be  in  anywise  convicted,  it  shall  De  lawiui 

luffei  the  same  punishinent,  if  he  be  in  anywise  con- 
vktld  as  he  should  have  suffered  if  the  principal  had 
been  sentenced  or  punished. 

Sec    980.    Accessories   before   the   fact,   how   punished. 
'l8G8,c.  31,s.  3.    l874-'5,  C.312. 

Anv  person  who  shall  be  convicted  as  an  accessory, 
before  t^he  fact  in  either  of  the  crimes  of  murdeiN  arson 
buSliT  or  rape,  shall  be  imprisoned  for  life  in  the  pen- 
itent ary  An  accessory  before  the  fact  to  the  stealmg 
of  any  horse  mare,  gelding  or  mule,  on  bemg  duly  con- 
victed theieof  shaifbe  imprisoned  at  liavd  labor  m  the 
nenSntiary  for  not  less  than  five  nor  moi'e  than  twenty 
?easn  the  discretion  of  the  court.     Every  accessory 


403  CRIMES  AND  PUNISHMENTS.     [Chap.  25. 

before  the  fact,  in  any  other  felony,  shall  be  punished  by 
imprisoumeut  in  the  penitentiary  or  county  jail,  for  not 
more  than  ten  yeare,  or  may  be  fined,  in  the  discretion 
of  tlie  court. 

Slate  V.  Duvis,  87—514. 

Sec.  981.  Advertisements' and  legal  notices,  destruction 
or  defacing  of,  punished.    187G-'7,  c.  215. 

Any  person  who  shall  wilfully  and  unlawfully  deface, 
tear  down,  remove  or  destroy  any  legal  notice  or  adver- 
tisement authorized  by  law  to  be  posted  by  any  officer  or 
other  person,  the  same  being  actually  posted  at  the  time 
of  such  defacing,  tearing  down,  removing  or  destruction, 
durmg  the  time  for  which  such  legal  notice  or  advertise- 
ment shall  be  authorized  by  law  to  be  posted,  shall  be 
guilty  of  a  misdemeanor,  and  fined  not  exceeding  fifty 
dollars,  or  imprisoned  not  exceeding  thii-ty  days. 

Sec,  982.  Adulterated  liquors,  penalty  for  making  or  sell- 
ing.   1858-'9,  c.  57,  .ss,  1,  4. 

If  any  person  shall  adulterate  any  spirituous,  alcoholic, 
vinous  or  malt  liquors  by  mixing  the  same  with  any  sub- 
stance of  whatever  kind,  except  as  hei'einafter  provided, 
or  if  any  person  shall  sell  or  offer  to  sell  anv  spirituous^ 
alcohohc,  vinous  or  malt  liquors,  knowing  the  same  to 
be  thus  adulterated,  or  shall  import  into  this  state  any 
spirituous  or  intoxicating  liquors,  and  sell  or  ofTer  to  sell 
such  liquor,  knowing  the  same  to  be  adulterated,  be  shall 
be  guilty  of  a  misdemeanor,  and  fined  and  imprisoned, 
or  both,  at  tlie  discretion  of  the  court. 

Sec.  983.  Adulterated  and  poisonous  liquors,  penalty  for 
manufacturing  or  selling.  1873-'4,  c.  180,  ss.  1,  2. 
Any  person  who  shall  manufacture,  sell,  or  in  anv  way 
deal  out  spirituous  liquors,  of  any  name  or  kind,"^to  be 
used  as  a  drink  or  beverage,  and  the  same  shall  be  found 
to  contain  any  foreign  properties  or  ingredients  poison- 
ous to  the  human  system,  shall  be  guilty  of  a  high  mis- 
demeanor, and  imprisoned  in  the  penitentiary  not  less 
than  five  years,  and  may  be  fined  in  the  discretion  of  the 
court.  It,  shall  be  competent  for  any  citizen  after 
making  purchase  of  any  spirituous  liquors,  to  cause  the 
same  to  be  analyzed  by  some  known  competent  chemist, 
and  if  upon  such  analysis  it  shall  be  found  to  contain  any 
foreign  poisonous  matter  it  shall  he  prima  facie  evidence 
against  the  pai-ty  making  such  a  sale. 


Chap.  25.]    CRIMES  AND  PUNISHMENTS.  403 

Sec.  984.  Adulterating  liquors,    penalty  for   selling  rec- 
ipes lor.    1858-'9,  c.  57,  ss.  3,  3. 

Any  persdii  who  sliall  sell  or  offer  to  sell  any  recipe  or 
formula  whatever  for  adulteratiug  any  si^irituous  or 
alcoholic  liquors,  by  mixing  the  same  with  any  substance 
of  whatever  kind,  except  as  is  hereinafter  provided,  shall 
be  guilty  of  a  misdemeanor,  and  fined  and  imprisoned 
as  is  provided  in  the  preceding  section:  Provided,  tha-t 
this  section  and  the  two  preceding  sections  shall  not  be  so 
construed  as  to  prevent  druggists,  physicians,  and  persons 
engaged  in  the  mechanical  aits,  from  adulterating  hquors 
for  medical  and  mechanical  purposes. 

Sec.  985,  Arson   and   otlier   burnings,    pnnisliment   for. 
K.  C,  c.  34,  s.  3.  1870-'l,  c.  223. 

(1)  Any  persofl  convicted  according  to  due  course  of 
law  of  the  crime  of  arson,  shall  suffer  death. 

Stale  T.  Bullock,  63—570 ;  State  v.  Jones,  69—364. 

1863,  c.  17.  1868-'9,  c.  167,  s.  5. 

(2)  Every  person  convicted  of  any  wilful  burning  of 
any  gin  house  or  tobacco  house,  or  any  part  thereof,  or, 
in  the  night  time,  of  any  stable  containing  a  horse  or  a 
mule,  shall  be  imprisoned  in  the  penitentiary  not  less 
than  five,  nor  more  than  ten  years. 

State  V.  England,  78—552;  Slatev.  Lawrence,  81-523;  State  v. Thome, 
81—555;  State  v.  Giccn,  85—600;  State  v.  Dunn,  86—731. 

R.  C,  c.  34,  s.  7.  1830,  e.  41,  s.  1.  1868-'9,  c.  167,  s.  5. 

(3)' Any  person  who  shall  wilfully  and  maliciously  burn 
the  state  house,  or  any  of  the  public  oPficos  cf  the  state, 
or  any  court  house,  jail,  arsenal,  clerk's  office,  register's 
office,  or  any  house  belonging  to  any  county  or  incorpo- 
rated town  in  the  state,  or  to  any  incorporated  company 
whatever,  in  which  are  kept  the  archives,  documents,  or 
public  papers  of  such  county,  town,  or  corporation,  shall, 
on  conviction,  be  imprisoned  in  the  penitentiary  for  not 
less  than  five,  nor  more  than  ten  years. 

Stale  V.  Mltcliell  5  Ired.,  350;  State  v.  Upchurch,  9  Ired.,  454;  State  v. 
Laugblin,  8  Jon.,  455. 

R.  C.  c.  34,  s.  30.  1835,  c.  1378. 

(4)  If  any  person,  with  intent  to  destroy  the  same,  shall 
wilfuhy  and  maliciously  set  fire  to  and  burn  any  pubhc 
bridge,  or  private  toll  bridge,  or  the  bridge  of  any  incor- 
porated company,  or  any  fire  engine  house,  or  any  house 
belonging  to  any  county  or  incorporated  town,  used  for 
public  purposes   other  than  the  keeping    of    archives, 


404  CRIMES  AND  PUNISHMENTS.     [Chap.  55. 

documents  and  pubUc  papers,  or  any  house  belonffinR  tc 
an  incorporated  company  and  used  in  the  business  of  such 
company;  or  if  any  person  shall  wilfully  and  mahciously 
att^erapt  to  bum  any  of  the  said  houses  or  bridges,  or  any 
ot  the  houses  or  buildings  mentioned  in  this  chapter,  the 
person  so  offending  shall  be  guilty  of  a  misdemeanor, 
and  punished  oy  imprisonment  in  the  penitentiary  or 
county  ]ail,  for  not  less  than  four  months  nor  more  than 
ten  years. 

1874-'5,  c,  133. 

(5)  Any  person  who  shall  wilfully  burn  or  destroy  any 
other  person's  com,  cotton,  wheat,  barley,  rye,  oats 
buckwheat,  rice,  tobacco,  hay,  sti'aw,  fodder,  shucks  or 
or  other  provender  in  a  stack,  hill,  rick  or  pen,  or  secured 
m  any  other  way  out  of  doors,  shall  be  guilty  of  a  mis- 
flenieanor,  and  punished  by  imprisonment  in  the  county 
jaii  or  penitentiary  for  not  less  than  four  months  nor 
more  than  five  years. 

1874.'5,  c.  228.  7  and  8  Geo.  IV.,  c.  30,  s.  2. 

(c.)  Whoever  shall  unlawfully  and  maliciously  set  fire 
to  any  church,  chapel  or  meeting  bouse,  or  shall  unlaw- 
tuUy  or  maliciously  set  fire  to  any  stable,  coach  house, 
out-house  warehouse,  office,  shop,  mill,  barn  or  granary 
or  to  any  building  or  erection  used  in  carrying  on  any 
trade  or  manufacture,  or  any  branch  thereof,  whether  the 
same  or  any  of  them  respectively  shaU  then  be  in  the 
possession  of  the  offender,  or  ili  the  possession  of  any 
other  pei-son,  with  intent  thereby  to  mjure  or  defraud 
any  person  or  persons,  body  politic  or  corporation,  shaU 
be  gui  ty  of  felony,  and  imprisoned  in  the  penitentiary 
tor  not  less  than  live  nor  more  than  forty  years 

Slale  V.  Janes  T8-504;  St.itc  v.  England.  78-553;  State  v.  Thome  81- 
ooo;  fatutc  V.  Jenkins.  84—813. 

187G-'7,  c.  13. 

(7)  Any  person  who  shall  wilfully  attempt  to  burn  any 
dwelling  house,  unmhabited  house,  barn,  stable,  or  out 
house,  or  mill,  manufacturing  house,  cotton  gin,  tobacco 
barn  granary  or  turpentine  distillery,  the  property  of 
anothei-,  the  person  so  offending  shall  be  guilty  of  a 
misdemeanor,  and  punished  by  imi)risonment  in  the 
pmiitentiary  or  county  jad,  and  may  also  be  fined,  in  the 
discretion  of  the  court.  ,       v  ^ 

■,  f""'l',^'i'"'  '^  ^"''-  ^°'^-  ^"^'"  '■  ^''^'^y-  3  Iroa..  570;  State  v.  Chvrk. 
7  Jon.,  16/;  Slate  v.  La.igUlin,  8  Jon.,  354.  455:  Slate  v.  Jim,  8  Jon.,  458; 


Chap.  25.]    CRIMES  AND  PUNISHMENTS.  405 

State  V.  Cherry,  C3— 493;  State  v.  "Wise,  66—120;  State  v.  Jones,  09—364; 
State  V.  King,  09-419;  State  v.  Gailor,  71—88. 

Sec.  08G.  Artificial  islands  or  lumps;  penalty  for  erecting. 
1883,  c.  lOJ). 

It  shall  l^e  unlawful  for  any  person  to  erect  artificial 
islands  or  lumps  in  any  of  the  waters  of  the  state  east  of 
the  Wilmington  and  Weldon  Railroad  and  Petersburg 
and  Weldon  Railroad. 

Any  person  violating  this  section  shall  be  guilty  ot  a 
misdemeanor. 

Sec.  987.  Assault,  punisbment  therefor.  1870-'l,  c.  43, 
s.  3.     1873-'4,  c.  17C,  s.  C.     1879,  c.  92.  ss.  3,  C. 

In  all  cases  of  an  assault,  with  or  without  intent  to  kill 
or  injure,  the  person  convicted  shall  be  punished  by  fine 
or  imprisonment,  or  both,  at  the  discretion  of  the  court: 
Provided,  that  where  no  deadly  weapon  has  been  used 
and  no  serious  damage  done,  the  punishment  in  assaults, 
assaults  and  batteries,  and  affrays,  shall  not  exceed  a  fine 
of  fifty  dollars  or  imprisonment  for  thirty  days;  but  this 
proviso  shall  not  apply  to  cases  of  assault  with  intent  to 
kill,  or  with  intent  to  commit  rape. 

State  V.  Ileidlcburg,  70—490;  In  re.  Sclienck,  74—607;  State  v.  McNeill, 
75—15:  Slate  v.  Miller,  75—73;  Slate  v.  Taylor,  83—601;  Slate  v.  Berry, 
83-603;  State  v.  Martin,  85—508;  State  v.  Watts.  85—517;  Stale  v.  Gainus, 
86—633. 

Sec.  988.  Bigamy,  what  and  how  punished.  9  Geo.  r\^,  c. 
31,  s.  23.  K.  C,  c.  34,  s.  15.  1790,  c.  323.  1809,  e. 
783.     1839,  c.  9. 

If  any  person  being  married,  shall  marry  any  other 
person,  during  the  life  of  the  former  husband  or  wife, 
whether  the  second  marriage  shall  have  taken  place 
in  the  state  of  North  Carolina,  or  elsewhere,  every  such 
offender,  and  every  person  counseling,  aiding  or  abetting 
such  offender,  shall  be  guilty  of  felony,  and  imprisoned 
in  the  penitentiary  or  county  jail,  for  any  term  not  less 
than  four  months  nor  more  than  ten  years;  and  any  such 
offence  may  be  dealt  with,  tried,  determined  and  punished 
in  the  county  where  the  offender  shall  be  apprehended, 
or  be  in  custody,  as  if  the  offence  had  been  actually  com- 
mitted in  that  county :  Provided,  that  nothing  herein  shall 
extend  to  any  person  marrying  a  second  time,  whose 
husband  or  wife  shall  have  been  continually  absent  from 
such  person  for  the  space  of  seven  years  then  last  past, 
and  shall  not  have  been  known  by  such  person  to  have 


^06  CRIMES  AND  PUNISHMENTS.     [Chap.  25. 

been  living  within  that  time,  nor  shall  extend  to  any  ner 
son  who  at  the  time  of  such  second  marria-e  shaU  hav« 

nage  nor  to  any  person  whose  former  maniase  shall 
have  been  declared  void  by  the  sentence  of  any  court  of 
competent  jurisdiction.  ^        "  °^ 

state  V    Norrcan.  2  Dcv.,  223;  State  v.  Patterson.  2  Ircd.,  346-  State  v 
RobUns,  6  lad..  23;  State  v.  Bray.  13  Ircd.,  289;  Slate  v.  Bamett,  83-C15: 

Sec.  989.  Blackmailing  by  accusation,  threatening  letter 
or  other  threats.    R.  C,  c.  34,  s,  llO. 

If  ariy  pei'son  shall  knowingly  send  or  deliver  an v letter 
or  writing  demanding  of  an/ person,  with  menSJs  and 
without   any  reasonable  or  piUable  cause,  amfclmMel 
money,  orvaluable  security;  or  if  any  person  shill  accuse 
or  threaten  to  accuse,  or  shaU  knowingly  send  or  deW 
any  letter  or  writing,  accusing  or  th.^eatening  to  accuse 
any  person  of  any  crime  punishable  by  law  with  Sh 
or  imprisonment  in  the  penitentiary,  with  a  view  or  in- 
tent  to  extort  or  gam  from  such  person  any  chattel 
money,  or  valuable  security,  every  such  offender  shall  be 
guilty  of  a  misdemeanor. 

Sec.  990.  Bribery  of  jurors.    R.  C.,  c.  34,  s.  34      5  Frtw 

III.,  c.  10.  34Baw.iii.,c.8.  38Ea;!m  c  1? 

If  any  juror,  either  directly  or  indirectly,  shall  take 
anything  troni  the  plaintiff  or  defendant  hi  a  civil  sSt 
or  fiom  any  defendant  in  a  state  piwecution,  or  from 
any  other  person  to  give  his  verdict,  every  such  iuror 
and  the  person  who  shall  give  such  juror  anv  fee  or  re- 
ward to  influence  his  veidict,  or  induce  or  procure  him 
to  make  any  gain  or  profit  by  his  verdict,  shall  be  ffuiltv 
of  an  infamous  crime,  and  imprisoned  in  the  penitentiary 
or  county  jail  not  less  than  four  months  nor  more  than 
ten  years. 

Sec.  991.    Bribery;     officers    receiving    bribes,  guilty  of 
felony.     18G8-'9,  c.  176,  s.  2.  "^joi 

Any  person  hold  ng  office  under  the  laws  of  this  state 
who,  except  in  payment  of  his  legal  salary,  fees  or  per- 
quisites shall  receive,  or  consent  to  receive,  directly  or 
indirectly,  anything  of  value  or  personal  advantajje  or 
the  promise  thereof,  for  performing  or  omitting  to  per- 
form any  official  act,  or  with  the  exp.-ess  or  implied  un- 
dei^tandmg  that  his  official  action,  or  omi.ssion  to  act 
is  to  be  in  any  degree  influenced  thereby,  shall  be  iruiltv 
ot  a  telouy,  and  punished  by  imprisomneut  in  the  peui- 


Chap.  25.]    CEIMES  AND  PUNISHMENTS.  407 

tentiary  for  a  term  not  exceeding  five  years,  or  fined  not 
exceeding  five  thousand  dollars,  or  both,  in  the  discretion 
of  the  court. 

Sec.  992.  Bribery;  oflFeriiig  a  bribe  punished.  1870-'l,  c. 
232. 

Any  person  offering  a  bribe,  whether  it  be  accepted  or 
not,  shall  be  guilty  of  felony,  and  punished  by  imprison- 
ment for  a  term  not  less  than  one  year  nor  more  than 
five  years  in  the  penitentiary  or  county  jail,  in  the  discre- 
tion of  the  court. 

Sec,  993.  Bridges,  misdemeanor  to  demolisli,  break  or  in- 
jure.   1883,  c.  271. 

If  any  person  shall  unlawfully  and  wilfully  demolish, 
destroy,  break  or  tear  down,  injure  or  damage  any  bridge 
across  any  of  the  creeks  or  rivers  or  other  streams  in  the 
state,  he  shall  be  guilty  of  a  misdemeanor,  and  fined  or 
imprisoned,  or  both,  in  the  discretion  of  the  court. 

Sec.  904.  Burglary,  bow  punished.    1870-'l,  c.  222. 

Any  person  convicted,  according  to  duo  course  of  law, 
of  the  crime  of  burglary,  shall  suffer  death. 

Siatc  V.  Wise,  66—120,  67—281;  State  v.  Evaus,  00-40;  State  v.  Jones, 
69_364;  Stale  v.  Johuson.  75—123. 

Sec.  995.  Burglary,  brealf  ing  out  of  dwelling  house  in  the 
uight  time.  R.  C,  c.  34,  s.  8.  12  Anue,  c.  7,  s.  3.  78 
Geo.  IV.,  c.  29,  s.  11.    24,  35   Vic.  c.  96,  s.  51. 

If  any  person  shall  enter  the  dwelling  house  of  another 
with  intent  to  commit  any  felony  or  other  infamous 
crime  therein,  or  being  in  such  dwelling  house,  shall  com- 
mit any  felony  or  other  infamous  crime  therein,  and 
shall,  in  either  "case,  break  out  of  the  said  dwelling  house, 
in  the  night  time,  such  person  shall  be  guilty  of  burglary. 

State  v.Hbnry,  9  Ired.,  4G3;  Stiitev.  Boone,  13  Ired.,  244;  State  v.  Whit., 
4  Jon.,  349;  Stale  v.  Jenkins,  5  Joa.,  430;  State  v.  Willis,  7  Jon.,  190;  State 
V.  McDaniel,  Winst.,  249;  Slate  v.  Jake,  2  Winst.,  80;  State  v.  Johnson, 
Phil.,  186;  Slate  v.  McPherson,  70—239. 

See.  99(5.  Burglary,  breaking  into  certain  houses  or  build- 
ings, a  misdemeanor.    1874-'5,  c.  1G«.    1879,  c.  323. 

If  any  person  shall  break  or  enter  a  dwelling  house  of 
another  otherwise  than  by  a  burglarious  breaking ;  or 
shall  break  and  enter  a  storehouse,  shop,  ware- house, 
banking-house,  counting-house,  or  other  building,  where 
any  merchandise,  chattel,  money,  valuable  security,  or 


408  CRIMES  AND  PUNISHMENTS.     [Chap.  25. 

other  personal  property  shall  be;  or  shall  break  and  enter 
any  unnihabited  house;  with  intent  to  commit  a  felony  or 
other  infamous  crime  therein;  every  such  person  shall  be 
guilty  ot  an  infamous  crime,  and  imprisoned  in  the  peni- 
tentiary or  county  jail,  not  less  than  four  months  nor 
more  than  ten  years. 

Slate  V.  Dozier,  73—117;  State  v.  Hughes,  8G— 663. 

Sec.  997.  Burglary  or  other  felony,  the  intent  to  commit, 
an  infamous  crime.    24,  26  Vict.,  c.  9C,  s.  58. 

If  any  person  shall  be  found  by  night,  armed  with  any 
dangerous  or  offensive  weapon,  with  the  intent  to  break 
or  enter  a  dwelling,  or  other  building  whatsoever,  and  to 
commit  a  felony  or  other  infamous  crime  therein;  or  shall 
be  found  by  nigh^,  having  in  liis  possession,  without  law- 
tul  excuse,  any  pick  lock,  key,  bit  or  other  implement  of 
house  breakmg;  or  shall  be  found  by  night  in  any  such 
building,  with  intent  to  commit  a  felony  or  other  infa- 
mous crime  therein,  such  person  shall  be  gudty  of  an  in- 
famous crime,  and  punished  by  fine  or  imprisonment,  or 
both,  in  the  discretion  of  the  coui-t. 

_  State  V.  Dozier,  73—117. 

Sec.  998.  Buying  and  selling  oflBices.    R.  C,  c.  34    s  33 
5,  G  Etlw.  VI.,  c.  16,  ss.  1,  5. 

If  any  person  shall  bargain  or  sell  an  office  or  deputa- 
tion of  an  office,  or  any  part  or  parcel  thereof,  or  shall 
take  money,  reward,  or  other  profit,  diiectly  or  indirectly 
or  shall  take  any  pi-omise,  covenant,  bond  or  assurance 
for  money,  reward  or  profit,  for  an  office  or  the  deputa- 
tion of  an  office,  or  any  part  thereof,  which  office  or  any 
part  thereof  shall  touch  or  concern  the  administration  or 
execution  of  Justice,  or  the  receipt,  collection,  control  or 
disbursement  of  the  public  revenue,  or  shall  concern  or 
touch  any  clerkship  in  any  court  of  record  wherein  jus- 
tice IS  administered;  or  if  any  person  shall  give  or  pay 
money,  reward  or  profit,  or  shall  make  any  promise 
agreement,  bond  or  assurance  for  any  of  the  said  offices' 
or  for  the  deputation  of  any  of  them,  or  for  any  part  of 
them,  the  person  so  offending  in  any  of  the  cases  afore- 
said shall  be  gmlty  of  a  misdemeanor,  and  on  conviction 
thereof  shall  forfeit  all  his  right,  interest  and  estate  in 
such  office,  and  eveiy  part  and  parcel  thereof,  and  shall 
be  imprisoned  and  fined  at  the  discretion  of  the  court 


Chap.  25.]    CRIMES  AND  PUNISHMENTS.  409 

Sec,  999,  Castration  with  malice  aforetlioiiglit,    R.  C,  c. 
34,  s.  4.    1831,  c.  40,  s.  1.    1868-'9,  c,  167,  s.  6, 

If  aDy  person,  of  malice  aforethought,  shall  unlawfully 
castrate  any  other  person,  or  cut  off,  maim,  or  disfigure 
any  of  the  privy  members  of  any  person,  with  intent  to 
murder,  maim,  disfigure,  disable  or  render  uupotent 
such  person,  the  person  so  offending  shall  suffer  imprison- 
ment in  the  penitentiary  for  not  less  than  five  nor  more 
than  sixty  years. 

State  V.  Peter,  8  Jon.,  19;  State  v.  King,  69-419;  State  v.  Skidmore, 
87—509. 

Sec.  1000,  Castration  or  maiming  without  malice  afore- 
thought.   K.  C,  c.  34,  s.   47.     1754,  c.  56.    1791,  c. 
339.  ss.  2,  3.     1831,c.  40,  s.  2. 
If  any  person  shall,  on  purpose  and  unlawfully,  but 
without  malice  aforethought,  cut  or  slit  the  nose,  bite 
or  cut  ofi  a  nose,  lip  or  ear,  or  disable  any  hmb  or  member 
of  any  other  person,  or  castrate  any  other  person,  or  cut 
ofif   maim,  or  disfigure  any  of  the  privy  members  of  any 
other  person,  with  intent  to  kill,  maim,  disfigure,  disable 
or  render  impotent  such  person;  the  person  so  offending 
shall  be  imprisoned  in  the  county  jail  or  penitentiary  not 
less  than  six  months  nor  more  than  ten  years,  and  faned, 
in  the  discretion  of  the  court. 

State  V.  Irwin,  1  Hay.,  113;  State  v.  Evans,  1  Hay.,  281;  State  v.  Orman, 
1  D.  &  B.,  119;  State  v.  Martin,  3  Dev.,  329;  State  v.  Girken,  1  Ircd., 
121:' State  v.  Green,  7  Ired.,  39:  State  v.  Miller,  75—73;  State  v.  Skidmore, 
87—509. 

Sec  1001.  Cattle  and  live  stock,  mismarking,  a  misde- 
meanor. K.  C,  c.  34,  s.  57.  1797,  c.  485,  s.  2. 
If  any  person  shall  knowingly  alter  or  deface  the  mark 
or  brand  of  any  other  person's  horse,  mule,  or  ass,  neat 
cattle,  sheep,  goat,  or  hog.  or  shall  knowingly  mis- 
mark  or  brand  any  such  beast  that  may  be  unbranded  or 
unmarked,  not  properly  his  own,  with  intent  to  defraud 
any  other  person,  the  person  so  offending  shall  be  guilty 
of  a  misdemeanor,  and  punished  as  if  convicted  of  lar- 
ceny. 

Stale  V.  Goode,  1  Hawks,  463;  State  v.  Collins,  3  Dev.,  117;  State  v.  Da. 
vis,  2  Ircd.,  153;  State  v.  O'Neal,  7  Ired.,  251;  State  v.  Allen,  73—114; 
State  V.  KiuL',  84-737. 

Sec.  1002.  Cattle  and  live  stock,  the  wilful  killing  or  in- 
juring of,  running  at  large  in  the  range.  R.  C,  c.  34, 
.s.  104.     1850,  c.  94,  ss.  1,  2. 

If  any  person  shall  unlawfully  and  on  purpose  kill, 

18 


410  CRIMES  AND  PUNISHMENTS.     [Chap.  25. 

maim,  or  injure  any  live  stock,  lawfully  running  at  large 
in  the  i-ange,  or  in  the  field  or  pasture  of  the  owner, 
whether  done  with  the  actual  intent  to  injure  the  owner, 
or  to  drive  the  stock  from  the  range,  or  any  other  un- 
lawful intent,  every  such  person,  his  counselors,  aiders, 
and  abettors,  shaU  be  guilty  of  a  misdemeanor:  Pro- 
vided, i\iai  nothing  herein  contained  shall  prohibit  any 
person  from  di-iving  out  of  the  range  any  stock  unlaw- 
fully brought  from  other  states  or  places. 

State  V.  Waters,  6  Jon.,  276;  St.itc  v.  Butler,  65—309;  State  v.  Manuel, 
72—201 ;  State  v.  Simpson,  73—269;  State  v.  HIU.  79—656;  State  v.  Pol- 
lard, 83—597. 

Sec.  1 003.  Cattle  and  live  stock,  injury  to,  in  unlawful  in- 
closurc.     1868-'0,  c.  253. 

If  any  person  shall  wilfully  and  unlawfully  kill  or 
abase  any  horse,  mule,  hog,  sheep  or  other  cattle,  the 
property  of  another,  in  any  inclosure  not  surrounded  by 
a  lawful  fence,  such  person  shall  be  guilty  of  a  misde- 
meanor, and  fined  or  imprisoned  at  the  discretion  of  the 
court:  Provided,  that  this  section  shall  not  apply  to  any 
county  or  territory  where  the  stock  law  prevails. 

State  V.  Staton,  66—640;  State  v.  Allen,  C9— 23;  State  v.  Painter,  70— 
70;  State  v.  Manuel,  72—201;  Slate  v.  Simpson,  73—269,  Slate  v.  Hill, 
79-656;  State  v.  Parker,  81—531,  548;  State  v.  WLitaker,  85—566. 

Sec.  1004.  Concealing-  birth  of  child.  K.  C,  c.  34,  s.  28. 
1818,  c.  985.  1883,  c.  .390.  21  Jac.  1,  c  27.  43  Geo. 
Ill,  c.  58,  s.  3.    9  Geo.  IV,  c.  31,  s.  14. 

If  any  woman  or  other  person  shall  by  secretly  bury- 
ing or  otherwise  disposing  of  the  dead  body  of  a  new 
born  child  of  such  woman,  or  any  other  woman,  or  en- 
deavors to  conceal  the  birth  of  such  child,  such  person 
shall  be  guilty  of  a  misdemeanor,  and  punished  by  fine 
or  imprisonment,  or  both,  such  imprisonment  to  be  in 
the  county  jail  or  penitentiary,  at  the  discretion  of  the 
couit:  Provided,  that  the  imprisonment  in  the  peniten- 
tiary shall  in  no  case  exceed  a  term  of  ten  years:  Pro- 
vided further,  that  nothing  in  this  section  shall  be  con- 
strued to  ])revent  the  mother,  who  may  be  guilty  of  the 
homicide  of  her  child,  from  being  prosecuted  and  pun- 
ished for  the  same  accoiding  to  the  principles  of  the 
common  law.  And  any  person  aiding,  counseling  or 
abetting  any  woman  in  concealing  the  birth  of  her  child, 
shall  be  guilty  of  a  misdemeanor. 

State  V.  Jeffreys,  SMur.,  480;  State  v.  Joiner,  4  Hawks,  350, 


I 


Chap.  25.]    CRIMES  AND  PUNISHMENTS.  411 

Sec.  1005.   Concealed  weapons,  the  carrying  of  unlaw- 
fully, a  misdemeanor.     1879,  c.  137.     1883,  c.  81. 

If  any  one,  except  when  on  his  own  premises,  shall 
cany  concealed  about  his  person  any  pistol,  bovvie  knife, 
dirk,  dagger,  slungshot,  loaded  cane,  brass,  iron  or  me- 
tallic knuckles  or  razor  or  other  deadly  weapon  of  like 
kind,  he  shall  be  guilty  of  a  misdemeanor,  and  fined  or 
imprisoned  at  the  discretion  of  the  coui-t.  And  if  any 
one,  not  being  on  his  own  lands,  shall  have  about  his  per- 
son any  such  deadly  weapon,  such  possession  shall  be 
prima  facie  evidence  of  the  concealment  thereof.  This 
section  shall  not  apply  to  the  following  persons:  officers 
and  soldiers  of  the  United  States  army,  civil  officers  of 
the  United  States  while  in  the  discharge  of  their  official 
duties,  officers  and  soldiers  of  the  militia  and  the  state 
guard  when  called  into  actual  service,  officers  of  the  state, 
or  of  any  county,  city  or  town,  charged  with  the  execu- 
tion of  the  laws  of  the  state,  when  acting  in  the  dis- 
charge of  their  official  duties. 

State  V.  Wilson,  84—777;  State  v.  Woodfin,  85—598;  State  v.  Speller 
86— G97;  Slate  v.  Roten,  86—701;  State  v.  Woodfln,  87—536;  State  v.  GU- 
bert,  87—527. 

Sec.  1006.  Cotton,  sale  of,  within  certain  hours  prohib- 
ited.    1873-'4,  c.  G2.     1874-'5,  c.  70. 

If  any  person  shall  buy,  sell,  deliver  or  receive,  for  a 
price,  or  for  any  reward  whatever,  any  cotton  in  the 
seed,  or  any  unpacked  lint  cotton,  brought  or  carried  in 
a  basket,  hamper  or  sheet,  or  in  any  mode  where  the 
quantity  is  less  than  what  is  usually  baled,  or  where  the 
cotton  is  not  baled,  between  the  hours  of  sunset  and  sun- 
rise, such  person  so  offending  shall  be  guilty  of  a  misde- 
meanor. 

Sec.  1007.   Cotton,  weighing  of,  regulated.     1874-'5,  c. 
58,  .ss.  1,  3. 

If  any  weigher  or  purchaser  of  cotton  shall  make  any 
deduction  from  the  weight  of  any  bag.  bale  or  package  of 
lint  cotton,  for  or  on  account  of  the  draft,  turn  or  break 
of  the  scales,  steelyards,  or  other  implement  used  in 
weighing  the  same,  or  for  any  other  cause  except  as 
herein  allowed,  the  person  so  offending  shall  be  guilty  of 
a  misdemeanor,  and  fined  three  hundred  dollars  or  im- 
prisoned, in  the  discretion  of  the  court:  Provided,  that 
the  weigher  may  make  such  pi-oper  deduction  as  shall  be 
agreed  on  by  him,  and  the  seller,  or  his  agent,  for  water, 


412  CEIMES  AND  PUNISHMENTS.     [Chap.  25. 

dirt  or  other  foreign  substance,  in  or  on  such  bag,  bale, 
or  package  of  cotton,  or  for  other  just  cause. 

Sec.  1008.  Cotton  weiglier's  oath,  the  failure  of  the 
weigher  to  make,  subscribe,  and  file  with  the  register 
of  deeds,  a  misdemeanor.    1874-'5,  c.  58,  s.  2. 

Every  public  weigher  of  cotton  shall,  before  entering 
on  the  duties  of  his  office,  make  and  subscribe  the  oath 
prescribed  for  cotton  weighers,  which,  when  made,  shall 
be  filed  in  the  office  of  the  register  of  deeds  for  the  county 
in  which  the  person  acts  as  weigher,  and  said  register 
shall  make  a  note  of  the  same,  and  any  person  acting  as 
weigher  without  making  and  filing  the  oath,  shall  be 
guilty  of  a  misdemeanor,  and  shall  be  fined  twenty-five 
dollars  for  every  bag,  bale,  or  package  of  cotton  wliich 
he  shall  have  unlawfully  weighed  before  being  qualified 
to  do  so. 

Sec.  1009.  County  claims,  speculation  in,  indictable. 
1868-'9,  c.  260. 

If  any  clerk,  sheriff,  register  of  deeds,  county  treas- 
urer, or  other  county,  city,  town  or  state  officer  shall  en- 
gage in  the  purchasing  of  any  county,  citv,  town  or  state 
claim  at  a  less  price  than  its  full  and  true  value,  or  at 
any  rate  of  discount  thereon,  or  be  interested  in  any 
speculation  in  any  such  claims,  he  shall  be  guilty  of  a 
misdemeanor,  and  fined  or  imprisoned,  and  also  shall  be 
liable  to  removal  from  office  at  the  discretion  of  the 
court. 

Sec.  lOlO.  Crime  against  nature.  K.  C,  c.  34,  s.  C.  1868- 
'9,  c.  167,  s.  6.    23  Hen.  VIII,  c.  6.    5  Eliz.,  c.  17. 

If  any  person  shall  commit  the  abominable  and  detest- 
able crime  against  nature,  with  mankind  or  beast,  he 
shall  be  imprisoned  in  the  penitentiary  not  less  than  five 
nor  more  than  sixty  years. 

State  V.  King,  09—419. 

Sec.  1011.  Directors,  commissioners  and  other  public 
officers  forbidden  to  become  contractors.  B.  C.  c.  34 
s.  38.     1825,  c.  1269.     1826,  c.  29. 

No  person,  appointed  or  elected  a  commissioner  or  di- 
rector to  discliarge  any  trust  wherein  the  state  or  any 
county,  city,  or  town  may  be  in  any  manner  interested, 
shall  become  an  undertaker,  or  make  any  contract  for 
his  own  benefit,  under  such  authority,  or  be  in  any  man- 
ner concerned  or  interested  in  making  such  contract,  or 


Chap.  25.]    CEIMES  AND  PUNISHMENTS.  413 

in  the  profits  thereof,  either  privately  or  openly,  singly 
or  jointly  with  another;  and  any  person  so  offending 
shall  be  guilty  of  a  misdemeanor. 

Sec.  1012.  Dueling,  sending,  accepting  or  bearing  a  chal- 
lenge, a  misdemeanor.  K.  C,  c.  34,  s.  48.  1802,  c. 
608,  s.  1. 

If  any  person  shall  send,  accept  or  bear  a  challenge  to 
fight  a  duel,  though  no  death  ensue,  he,  and  all  such  as 
counsel,  aid  and  abet  him,  shall  be  guilty  of  a  misde- 
meanor, and  moreover,  be  ineligible  to  any  office  of  trust, 
honor  or  pi'ofit  in  the  state,  any  pardon  or  reprieve  not- 
withstanding. 

State  V.  Fairier,  1  Hawks,  487. 

Sec.  1013.  Dueling,  when  death  ensues,  murder.  B.  C, 
c.  34,  s.  3.  1802,  c.  608,  s.  2. 
If  any  person  fight  a  duel  in  consequence  of  a  challenge 
sent  or  received,  and  either  of  the  parties  shall  be  killed, 
then  the  survivor,  on  conviction  thereof,  shall  suffer 
death;  and  all  their  aiders  or  abettors  shaU  be  considered 
accessories  before  the  fact. 

Sec.  1014.  Embezzlement  punished  as  larceny.  1871-'2, 
c.  145,  s.  2.  21  Hen.  VII,  c.  7.  39  Geo.  Ill,  c.  85.  7 
and  8  Geo.  IV,  c.  39,  s.  47.  24  and,  25  Vict.,  c.  96,  s. 
68. 

If  any  officer,  agent,  clerk,  employee  or  servant  of  any 
corporation,  person  or  copartnership,  (except  apprentices 
and  other  persons  imder  the  age  of  sixteen  years,)  shaU 
embezzle  or  fraudulently  convert  to  his  own  use,  or  shall 
take,  make  way  with  or  secrete,  with  intent  to  embezzle 
or  fraudulently  convert  to  his  own  use  any  money,  goods 
or  other  chattels,  bank  note,  check  or  order  for  the  pay- 
ment of  money  issued  by  or  di-awn  on  any  bank  or  other 
corporation,  or  any  treasury  warrant,  treasury  note,  bond 
or  obligation  for  the  payment  of  money  issued  by  the 
United  States  or  by  any  state,  or  any  other  valuable 
security  whatsoever  belonging  to  any  other  person  or 
corporation,  which  shall  have  come  into  his  posession  or 
under  his  care,  he  shall  be  guilty  of  felony,  and  punished 
as  in  cases  of  larceny. 

Sec.  1015.  Embezzlement  ofstate  bonds  or  other  property 
of  the  state,  by  state  officers  or  employees.  1874-'5,  c. 
52, 

If  any  officer,  agent  or  employee  of  the  state,  or  other 


414  CRIMES  AND  PUNISHMENTS.     [Chap.  25. 

person  having  or  holding  in  trust  for  the  same  any  bonds 
issued  by  said  state,  or  any  security,  or  other  property 
and  effects  of  the  same,  shall  embezzle  or  knowingly  and 
wilfully  misapply  or  convert  the  same  to  his  own  use,  or 
otherwise  wilfully  or  corruptly  abuse  the  said  trust,  such 
offender  and  all  persons  aiding  and  abetting,  or  otherwise 
assisting  therein,  shall  be  guilty  of  felony,  and  fined  not 
less  than  ten  thousand  dollars,  or  imprisoned  in  the  pen- 
itentiary not  less  than  twenty  years,  or  both,  at  the  dis- 
cretion of  the  court. 

Sec.  1016.  Embezzlement  of  trust  funds  by  public  officers, 
felony.    187G-'7,  c.  47. 

If  any  officer,  agent,  or  employee  of  any  city,  county, 
er  incorporated  town,  or  of  any  penal,  charitable,  relig- 
ious or  educational  institution;  or  if  any  person  having 
or  holding  any  moneys  or  property  in  trust  for  any  city, 
county,  incorporated  town,  penal,  charitable,  i-eligfous  or 
educational  institution,  shall  embezzle  or  otherwise  wil- 
fully and  cori'uptlyuse  or  misapply  the  ?ame  for  any  pur- 
pose other  than  that  for  which  such  moneys  or  property 
is  held,  such  person  shall  be  guilty  of  felony,  and  fined 
and  imprisoned  in  the  discretion  of  the  court. 

State  V.  Heaton,  81—542. 

Sec.  1017.  Embezzlement  by  treasurer  of  benevolent  or 
religious  institution,  a  misdemeanor.  1879,  c.  105. 

If  any  treasurer  or  other  financial  officer  of  any  benev- 
olent or  religious  institution,  society  or  congregation  shall 
lend  any  of  the  moneys  coming  into  his  hands  to  any 
other  person  or  association  without  the  consent  of  the  in- 
stitution, association  or  congregation,  to  whom  such 
moneys  belong ;  or,  if  he  shall  fail  to  account  for  such 
moneys  when  called  on,  he  shall  be  guilty  of  a  misde- 
meanor, and  punished  by  fine  or  imprisonment,  or  both, 
in  the  discretion  of  the  court. 

Sec.  1018.  Embezzlement   by  officer  of  railroad  company, 
felony.  1870-'l,  c.  103.  s.  1. 

If  any  president,  secretary,  treasurer,  director,  engi- 
neer, agent  or  other  officer  of  any  railroad  company, 
shall  embezzle  any  moneys,  bonds,  or  other  valuable  funds, 
or  securities,  with  which  such  pi-esident,  seci'etary,  treas- 
urer, director,  engineer,  a^ent,  or  other  officer,  shall  be 
charged  by  virtue  of  his  office,  or  agency,  or  shall  in  any 
way.  diiectly  or  indirectly,  apply  or  appropriate  the  same, 
for  the  use  or  benefit  of  himself,  or  anj'  other  person, 


Chap.  25.]    CRIMES  AND  PUNISHMENTS.  415 

state,  or  corporation,  other  than  the  company  of  which  he 
is  president,  secretary,  treasurer,  director,  engineer,  agent, 
or  other  officer,  for  every  such  offence  the  person  so  of- 
fending shall  be  guilty  of  felony,  and  on  conviction  in 
the  superior  or  criminal  court  of  any  county  through 
wnich  Ihe  railroad  of  such  company  shali  pass,  shall  be 
imprisoned  in  the  penitentiary,  not  less  than  three,  nor 
more  than  ten  years,  and  fined  not  less  than  one  thousand, 
nor  more  than  ten  thousand  dollars. 

State  V.  Jackson,  83—565. 

Sec.  1019.  Embezzlement,  conspiracy  witli  officer  of  rail- 
road. 1870-'l,  c.  103,  s.  2. 

If  any  person  shall  agree,  combine,  collude,  or  conspire 
with  the  president,  secretary,  treasurer,  director,  engi- 
neer or  agent  of  any  railroad  company,  to  commit  any 
offence  specified  in  the  preceding  section,  such  person  so 
offending  shall  be  guilty  of  felony,  and  on  conviction  in 
the  superior  or  criminal  court  of  a  county  through  which 
the  railroad  of  any  company  against  which  such  offence 
may  be  perpetrated  passes,  shall  be  imprisoned  in  the 
penitentiary  for  not  less  than  three,  nor  more  than  ten 
years,  and  fined  not  less  than  one  thousand,  nor  more 
than  ten  thousand  dollars. 

State  V.  Jackson,  83 — 5C5. 

Sec.  1020.  Embezzlement,  sufficiency  of  indictment  for. 
1871-'2,  c.  145,  s.  2. 

In  indictments  for  embezzlement,  except  when  the 
offence  shall  relate  to  a  chattel,  it  shall  be  sufficient  to 
allege  the  embezzlement  to  be  of  money,  without  specify- 
ing any  particular  coin  or  valuable  security  ;  and  such 
allegation,  so  far  as  regards  the  description  of  the  pro- 
perty, shall  be  sustained  if  the  offender  shall  be  proved 
to  have  embezzled  any  amount,  although  the  particular 
species  of  coin  or  valuable  security  of  which  such  amount 
was  composed  shall  not  be  proved 

Sec.  1021.  Escape,  prison-breacli  by  criminal.  K.  C,  c. 
.34,  s.  19.    1  Edw.  II.,  St.  2d. 

Any  person  who  shall  break  prison,  being  lawfully 
confined  therein,  shall  be  guilty  of  a  misdemeanor. 

State  V.  Brown,  83—585. 

Sec.  1022.  Escape,  officer  indictable  for,  what  necessary 
for  state  to  prove.  R.  C,  c.  34,  s.  35.  1791,  c.  343, 
s.  1. 

When  any  person  chai-ged  with  a  crime  or  misde- 


ii6  CEIMES  AND  PUNISHMENTS.     [Chap.  25. 

meaner,  or  sentenced  by  the  court  upon  conviction  of  any 
offence,  shall  be  legally  committed  to  any  sheriff,  con- 
stable or  jailer,  or  shall  be  ari'ested  by  any  sheriff,deputy 
sheriff  or  coroner  acting  as  sheriff,  by  virtue  of  any  capias 
issuing  on  a  bill  of  indictment,  information,  or  other 
criminal  proceeding,  and  such  sheriff,  deputy  sheriff 
coroner,  constable  or  jailer,  wilfully  or  negligently,  shall 
suffer  such  person,  so  charged,  or  sentenced  and  com- 
mitted, to  escape  out  of  his  custody,  the  sheriff,  deputy 
sheriff  coroner,  constable  or  jailer  so  offending,  being 
thereof  convicted,  shall  be  removed  from  office,  and  fined 
at  the  discretion  of  the  court  before  whom  the  trial  miy 
be  had;  and  in  all  such  cases  it  shaU  be  sufficient,  in  sup- 
port ot  the  indictment  against  such  sheriff  or  other  officer 
to  prove  that  such  person  so  charged  or  sentenced  was 
committed  to  his  custody,  and  it  shall  lie  upon  the  defend- 
ant to  show  that  such  escape  was  not  by  his  consent  or 
negligence,  but  that  he  had  used  all  legal  means  to  pre- 
vent the  same,  and  acted  with  proper  care  and  diligence- 
Frovided,  that  such  removal  of  a  sheriff  shall  not  affect 
his  duty  or  power  as  a  collector  of  the  public  revenue,  but 
he  shall  proceed  on  such  duty  and  be  accountable,  as  if 
such  conviction  and  removal  had  not  been  had. 

State  V.  Garrel],  83—580. 

Sec.  1023.  Escape,  duty  of  solicitor  in  such  a  case.    R  C 
c.  34,  s.  36.    1791,  c.  343,  s.  2.  ' 

It  is  hereby  declared  to  be  the  duty  of  sohcitors,  when 
they  shall  be  informed  or  have  knowledge  of  any  fe'on 
or  person  otherwise  charged  with  any  crime  or  offence 
against  the  state,  having  within  their  respective  distric's 
escaped  out  of  the  custody  of  any  sheriff,  deputy  sheriff 
coroner,  constable  or  jailer,  to  take  the  necessary  meas- 
ures to  prosecute  such  sheriff,  or  other  officer  so  of- 
fending. 

Sec.  1024.  False  lights,  holding  out,  on  or  near  seashore 
R.  C,  c.  34,  s.  58.     1831,  c.  42. 

Any  person  who  shall  make  or  display,  or  cause  to  be 
made  or  displayed  any  false  light  or  beacon,  on  or  near 
the  sea-coast,  for  the  purpose  of  deceiving  and  misleading 
masters  of  vessels,  and  thereby  put  them  in  danger  of 
shipwreck,  shall  be  guilty  of  a  felony,  and  imprisoned  in 
the  penitentiary  for  not  less  than  four  months  nor  more 
than  ten  years. 


Chap.  25.]    CEIMES  AND  PUNISHMENTS.  41Y 

Sec.  1035.  False  pretence  and  false  token,  cheating  by. 
B.  C,  c.  34,  s.  67.  1811,  c.  814,  s.  3.  24,  25  Vict.,  c. 
96,  s.  88.  33  Hen.  VIII,  c.  1,  ss.  1,  2.  30  Geo.  II,  c. 
34,  s.  1.  52  Geo.  Ill,  c.  64,  s.  1.  7  and  8  Geo.  IV,  c.  29, 
s.  53. 

If  any  person  shall  knowingly  and  designedly,  by 
means  of  any  forged  or  counterfeited  paper,  in  writing 
or  in  print,  or  by  any  false  token,  or  other  false  pretence 
whatsoever,  obtain  from  any  person  or  corporation 
within  the  state  any  money,  goods,  property,  or  other 
thing  of  value,  or  any  bank-note,  check,  or  order  for  the 
payment  of  money,  issued  by.  or  drawn  on,  any  bank  or 
other  society  or  corporation  within  this  state  or  any  of 
the  United  States,  or  on  any  treasury  warrant,  debenture, 
certificate  of  stock,  or  public  security,  or  any  ordei-,  bill 
of  exchange,  bond,  promissory  note,  or  other  obligation, 
either  for  the  payment  of  money  or  for  the  delivery  of 
specific  articles,  with  intent  to  cheat  or  defraud  any  per- 
son or  corporation  of  the  same,  such  person  shall  be 
guilty  of  a  misdemeanor  for  fraud  and  deceit,  and  im- 
prisoned in  the  penitentiary  not  less  than  four  months 
nor  more  than  ten  years,  and  fined,  in  the  discretion  of 
the  court.  Provided,  that  if,  on  trial  of  any  one  indicted 
for  such  misdemeanor,  it  shall  be  proved  that  he  obtained 
the  property  in  such  manner  as  to  amount  to  larceny,  he 
shall  not,  by  reason  thereof,  be  entitled  to  be  acquitted  of 
the  misdemeanor;  and  no  person  tried  for  such  misde- 
meanor shall  be  Uable  to  be  afterwards  prosecuted  for 
larceny  upon  the  same  facts:  Provided  further,  that  it 
shall  be  sufficient  in  any  indictment  for  obtaining  or 
attempting  to  obtain  any  such  property  by  false  pretences, 
to  allege  that  the  party  accused  did  the  act  with  in- 
tent to  defraud,  without  alleging  an  intent  to  defraud 
any  particular  person,  and  without  alleging  any  owner- 
ship of  the  chattel,  money  or  valuable  security;  and,  on 
the  trial  of  any  such  indictment,  it  shall  not  be  necessary 
to  prove  an  intent  to  defraud  any  particular  person,  but 
it  shall  be  sufficient  to  prove  that  the  party  accused  did 
the  act  charged  with  an  intent  to  defraud. 

State  V.  Simpson,  3  Hawks,  620;  State  v.  PatiUo,  4  Hawks,  348;  State 
V.  Justice,  3  Dev.,  199;  State  v.  Burrows,  11  Ired.,  477;  State  v.  Phifer,  65— 
320;  State  V.  Jones,  65 — 395;  State  v.  Jones,  70 — 75;  State  v.  Jolinson,  75 
—123;  State  v.  Fitzgerald,  1  D.  &  B.,  408;  State  v.  Gillespie,  80—396; 
State  V.  Reese,  83—637;  State  v.  Allred,  84—749;  State  v.  Heffner,  84- 
751;  State  v.  Eason,   86—674;  State  v.  Wilbourne,  87—529. 


418  CRIMES  AND  PUNISHMENTS.     [Chap.  25. 

Sec.  102G.  False  pretence,  obtaining  signature  by.  1871- 
'2,  c.  92. 

Every  person  who,  with  intent  to  defraud  or  cheat  an- 
other, shall  designedly,  by  color  of  any  false  token  or 
writing,  or  by  any  other  false  pretence,  obtain  the  signa- 
ture of  any  person  or  persons  to  any  written  instrument 
the  false  making  of  which  would  be  punishable  as  forg- 
ery, or  obtain  from  any  person  or  persons  any  money 
goods,  wares,  merchandise  or  other  property  or  valuable 
thmg  whatsoever,  shall  be  punishable  by 'fine  not  less 
than  one  hundred  dollars  nor  more  than  one  thousand 
dollars,  or  by  imprisonment  in  the  penitentiary  for  a 
term  not  less  than  one  year  nor  more  than  five  years  or 
both,  at  the  discretion  of  the  court. 

State  V.  Phifer,  65—321;  State  v.  Jones,  70—75;  State  v.  Young.  76—258; 
State  V,  Pickett,  78—459;  State  v.  Mauclay,  78—460;  State  v.  Austin,  79— 
631;  State  v.  Lambreth,  80—393;  State  v.  Gillespie,  80—396;  State  v. 
Holmes.  83-607;  State  v.  Reese,  83-637;  State  v.  Allred,  84—749;  State 
V.  Heffner,  84^751 ;  State  v.  Eason,  86—674. 

Sec.  1027.  False  pretence;  obtaining  advances  upon  rep- 
resentation of  ownership  of  property,  and  promising 
to  apply  the  same  to  payment  of  the  debt,  and  failing 
to  do  so.     1879,  cs.   185,  18G. 

If  any  person  shall  obtain  any  advances  in  money,  pro 
visions,  goods,  wares  or  merchandise  of  any  description, 
from  any  other  person  or  corporation,  upon  any  written 
representation  that  the  person  making  the  same  is  the 
owner  of  any  article  of  produce,  or  of  any  other  specific 
chattel,  or  personal  property,  which  said  property,  or  the 
proceeds  of  which,  the  said  owner  in  said  representation 
thereby  agrees  to  apply  to  the  discharge  of  the  debt  so 
created  as  aforesaid,  and  the  said  owner  shall  fail  to  ap- 
ply said  produce  or  other  property,  or  the  proceeds  there- 
of, in  accordance  with  said  agreement,  or  shall  dispose 
of  the  same  in  any  other  manner  than  is  so  agreed  upon 
by  the  parties  to  the  transaction,  the  person  so  oflfending 
shall  be  guilty  of  a  misdemeanor,  whether  he  shall  or 
shall  not  have  been  the  owner  of  anv  such  property  at 
the  time  such  representation  was  made.  This  offence 
shall  be  punishable  as  in  the  preceding  section. 

Sec.  1028.  Forcible  entry  and  detainer.  B.  C,  c.  49,  s.  1. 
5  Rich.  II.,  c.  8. 

No  one  shall  make  entry  into  any  lands  and  tenements, 
or  term  for  years,  but  in  case  where  entry  is  given  by 
law;  and  in  such  case,  not  with  strong  hand  nor  with 


I 


Chap.  25.]    CRIMES  AND  PUNISHMENTS.  419 

multitude  of  people,  but  onlj'  in  a  peaceable  and  easy- 
manner;  and  if  any  man  do  tbe  contrary,  be  shall  be 
guilty  of  a  misdemeanor. 

State  V.  Fort&Gause,  4  D.  &B.,  192;  State  v.  Smith,  3  Ired.,  137;  Slate 
V.  Prigdcn,  8  Ired.,  84;  Statev.  Whitfield,  8  Ired.,  315;  Jordan  v.  Rouse,  1 
Jon.,  119;  State  v.  Bordeaux,  341;  State  v.  Easoii,  70—88;  State  v.  Yar- 
borough,  70—350;  R.  R.  Co.  v.  Johnston,  70—348;  R.  R.  v.  Sharpp,  70— 
509;  Perry  V.  Sheplierd,  78— 83 ;  Statev.  Shepard,  83—614;  State  v.  Loney. 
87—535.  ' 

Sec.  1029.  Forgery,  how  punished.  R.  C,  c.  34,  s.  59. 
1801,  c.  572.  5  Eliz.,  c.  14,  ss.  3,  3,  &c.  21Jac.  1,  c. 
26  (A.  D,  1623). 

If  any  person,  of  his  own  head  and  imagination,  or  by 
false  conspiracy  or  fraud  with  others,  shall  wittingly  and 
falsely  foi-ge  and  make,  or  shall  cause  or  wittingly  assent 
to  be  forged  or  made,  or  sliall  show  forth  in  evidence, 
knowing  the  same  to  be  forged,  any  deed,  lease  or  will, 
or  any  bond,  writing  obligatory,  bill  of  exchange,  prom- 
issory note,  endorsement  or  assignment  thereof;  or  any 
acquittance,  or  receipt  for  money  or  goods;  or  any  re- 
ceipt, or  release  for  any  bond,  note,  bill,  or  any  other  se- 
curity for  the  payment  of  money;  or  any  order  for  the 
paynient  of  money  or  delivery  of  goods,  with  intent,  in 
any  of  said  instances,  to  defraud  any  person  or  corpora- 
tion, and  thereof  shall  be  duly  convicted,  the  person  so 
offending  shaU  be  punished  by  imprisonment  in  the  peni- 
tentiary or  county  jail  not  less  than  four  months  nor  more 
than  ten  years,  and  fined,  in  the  discretion  of  the  court. 

State  V.  DaltOQ,  1  Hawljs  3;  State  v.  Danrden,  2  Dev.,  443;  State  v.  Britt., 
8Dev.,  133;  Statev.  Morgan,  3D.  &B.,  348;  State  v.  Batemon,  3  Ired., 
474;  State  v.  Thornburg,  6  Ired.,  79;  Slate  v.  Gherliin,  7Ircd.,  306;  Statev. 
Weaver,  13  Ired.,  491;  Stale  v.  Lytle,  64— 355;  State  v.  Lamb,  65—419; 
Statev.  Thorn,  66—644;  Statev.  Leals,  80—403;  State  v.  Lane.  80—407; 
State  V.  Hastings,  86—596;  State  v.  Williams,  86—671. 

Sec.  1030.  Forgery  and  counterfeiting  bank-notes,  checks 
and  other  securities.  R.  C,  c.  34  s.  60.  1819,  c.  994, 

s.  1. 

If  any  person  shall  falsely  make,  forge  or  counterfeit, 
or  cause  or  procure  the  same  to  be  done,  or  willingly  aid 
or  assist  theiein,  any  bill  or  note  in  imitation  of,  or  pur- 
porting to  be,  a  bill  or  note  of  any  incorporated  bank  in 
this  state,  or  in  any  of  the  United  States,  or  in  any  of 
the  territories  of  the  United  States;  or  any  order  or  check 
on  any  such  bank  or  corporation,  or  on  the  cashier  there- 


420  CRIMES  AND  PUNISHMENTS.     [Chap.  25. 

of;  or  any  of  the  securities  purporting  to  be  issued  by  or 
on  behalf  of  the  state,  or  by  or  on  behalf  of  any  corpora- 
tion, with  intent  to  injui-e  or  defraud  any  person,  bank  or 
corporation,  or  tlie  state,  the  person  so  offending  shall  be 
guilty  of  felony,  and  punished  in  like  manner  as  if  he 
had  been  convicted  under  the  preceding  section. 

State  V.  Twilty,  3  Hawks,  248;  State  v.  Ward,  3  Hawks,  443;  State  v. 
Peter,  8  Jon.,  19;  Stale  v.  Tom,  Busb.,  214 

Sec.  1031.  Forgery  and  counterfeiting,  passing,  or  at- 
tempting to  pass,  notes  forged  or  counterfeited.  R. 
C,  c.  34,  s.  61.  1819,  c.  994,  s.  2. 

If  any  person,  directly  or  indirectly,  whether  for  the 
sake  of  gain  or  with  intent  to  defraud  or  injure  any  other 
person,  shall  utter  or  publish  any  such  false,  forged  or 
counterfeited  bill,  note,  order,  check,  or  security,  as  is  men- 
tioned in  the  preceding  section;  or  shall  pass,  or  dehver, 
or  attempt  to  pass,  or  deliver  any  of  them  to  another  per- 
son, (knowing  the  same  to  be  falsely  forged  or  counter- 
feited), the  person  so  offending  shall  be  punished  by  im- 
prisonment in  the  county  jail  or  penitentiary,  not  less 
than  four  months  nor  more  than  ten  years. 

State  V.  Harris,  5Ired.,  387. 

Sec.  1033.  Forgery  and  counterfeiting  of  certificates  of 
stock  by  officer  or  agent  of  a  corporation.  R.  C,  c.  34, 
s.  63. 

If  any  officer  or  agent  of  a  corporation  shall,  falselv 
and  with  a  fraudulent  purpose,  make  with  the  intent 
that  the  same  shall  be  issued  and  delivered  to  any  other 
person  by  name  or  as  holder  or  bearer  tliereof,  any  certi- 
ficate or  other  writing,  whereby  it  is  certified  or  declared 
that  such  person,  or  holder,  or  bearer,  is  entitled  to  or 
has  interest  in  the  stock  of  such  corporation,  when  in 
fact  such  person,  or  holder,  or  bearer,  is  not  so  entitled, 
or  is  not  entitled  to  the  amount  of  stock  in  such  certifi- 
cate or  writing  specified;  or  if  any  officer  or  agent  of 
such  corporation,  or  other  person,  knowing  such  certifi- 
cate or  other  writing  to  be  false  or  untrue,' shall  transfer, 
assign,  or  deliver  the  same  to  another  person,  for  the 
sake  of  gain,  or  with  the  intent  to  defraud  the  corpora- 
tion, or  any  member  thereof,  or  such  person  to  whom  the 
same  shall  be  transferred,  assigned  or  delivered,  the  per- 
son so  offending  shall  suffer  the  same  punishment  as  is 
prescribed  in  the  preceding  section. 


Chap.  25.]    CRIMES  AND  PUNISHMENTS.  421 

Sec.  1033.  Forgery  and  counterfeiting,  selling  forged 
judgments,  bonds  or  other  securities.  K.  C,  c.  34,  s. 
63. 

If  any  person  shall  sell,  by  delivery,  indorsement,  or 
otherwise,  to  any  other  person,  any  judgment  for  the  re- 
covery of  money  purporting  to  have  been  rendered  by  a 
justice  of  the  peace,  or  any  bond,  promissory  note,  bill  of 
exchange,  order,  draft,  or  liquidated  account  purporting 
to  be  signed  by  the  debtor  (knowing  the  same  to  _  be 
forged),  the  person  so  offending  shall  be  punished  by  im- 
prisonment in  the  penitentiary  or  county  jail,  for  not  less 
than  four  months  nor  more  than  ten  years. 

State  V.  Davis,  84—787;  State  v.  Collias,  85—511. 

Sec.  1034.  Forgery  of  names  to  petitions  and  certain 
otlier  papers;  punishment  therefor  and  for  using  such 
forged  paper.    1883,  c.  275. 

Any  person  who  shall  wilfully  sign,  or  cause  to  be 
signed,  or  wilfully  assents  to  the  signing  of  the  name  of 
any  person  without  his  consent,  or  of  any  deceased  or 
fictitious  person  to  any  petition  or  recommendation  with 
the  intent  of  procuring  any  commutation  of  sentence, 
pardon,  or  reprieve  of  any  person  convicted  of  any  crime 
or  offence,  or  for  the  purpose  of  procuring  such  pardon, 
reprieve  or  commutation,  to  be  refused  or  delayed  by  any 
public  officer,  or  with  the  intent  of  procuring  from  any 
person  whatsoever,  either  for  himself  or  another,  any  ap- 
pointment to  oflSce,  or  to  any  position  of  honor  or  trust, 
or  with  the  intent  to  influence  the  official  action  of  any 
public  officer  in  the  management,  conduct  or  decision  of 
any  matter  affecting  the  pubhc,  shall  be  guilty  of  a  mis- 
demeanor, and  fined  not  exceeding  one  thousand  dollars, 
or  imprisoned  in  the  county  jail  or  penitentiary  not  ex- 
ceeding five  years,  or  both,  at  the  discretion  of  the  judge; 
and  any  person  who  shall  wilfully  use  any  such  paper  for 
any  of  the  purposes  or  intents  above  recited,  knowing 
■  that  any  part  of  the  signatures  to  such  petition  or  recom- 
mendation has  been  signed  thereto  without  the  consent 
of  the  alleged  signers,  or  that  names  of  any  dead  or  fic- 
tictious  persons  are  signed  thereto,  shall  be  guilty  of  a 
misdemeanor,  and  punished  in  Hke  manner  and  degree. 

Sec.  1035.  Forgery  and  counterfeiting  of  foreign  coin, 
passing  or  attempting  to  pass  such  coin.  R.  C,  c.  34, 
s.  64.    1811,c.  814,  s.  3. 

If  any  person  shall  falsely  make,  forge,  or  counterfeit, 
or  cause  or  procure  to  be  falsely  made,  forged,  or  coun- 


422  CRIMES  AND  PUNISHMENTS.    [Chap.  25. 

terfeited,  or  willingly  aid  or  assist  in  falsely  making, 
forging,  or  counterfeiting  the  resemblance  or  similitude 
or  likeness  of  a  Spanish  nnlled  dollar,  or  any  foreign  coin 
of  gold  or  silver,  which  is  in  common  use  and  received 
in  the  discharge  of  contracts  by  the  citizens  of  the  state; 
or  shall  pass,  utter,  publish,  or  sell,  or  attempt  to  pass, 
utter,  publish,  or  sell,  or  bring  into  the  state  from  any 
other  place,  with  intent  to  pass,  utter,  publish,  or  sell  as 
true,  any  such  false,  forged,or  counterfeited  coin,  knowing 
the  same  to  be  false,  forged,  or  counterfeited,  with  intent 
to  defraud  any  corporation,  or  any  person  whatsoever, 
every  person  so  offending  shall  be  guilty  of  a  misde- 
meanor, and  punished  by  imprisonment  in  the  peniten- 
tiary or  county  jail,  for  not  less  than  four  months  nor 
more  than  ten  years. 

Sec.  1036.  Forgery  and  counterfeiting,  liaving- in  posses- 
sion instruments  for  counterfeiting  foreign  coin.  R. 
C,  c.  34,  s.  05.    1811,  c.  814,  s,  4. 

If  any  person  shall  have  in  his  possession  any  instru- 
ment for  the  purpose  of  making  any  counterfeit  simili- 
tude or  likeness  of  a  Spanish  milled  dollar,  or  other  for 
eign  coin  made  of  gold  or  silver,  which  is  in  common  use 
and  received  in  discharge  of  contracts  by  the  citizens  of 
the  state,  and  shall  be  duly  convicted  thereof,  the  person 
so  offending  shall  suffer  as  prescribed  in  the  preceding 
section,  and  shall  be  further  liable  to  be  fined,  at  the  dis- 
cretion of  the  court,  not  more  than  five  hundred  dollars, 
and  be  imprisoned  not  more  than  twelve  months. 

State  V.  Collius,  3  Hawks,  191. 

Sec.  1037.  Forgery  and  counterfeiting,  fraudulently  con- 
necting different  parts  of  several  genuine  bank  notes, 
or  otber  instruments.    K.  C,  c.  34,  s.  66. 

If  any  person  shall  fraudulently  connect  together  dif- 
ferent parts  of  two  or  more  bank  notes,  or  other  genuine 
instruments,  in  such  a  manner  as  to  produce  another  note 
or  instrumeuc.  with  intent  to  pass  all  of  them  as  genu- 
ine, the  same  shall  be  deemed  a  forgery,  and  the  instru- 
ment so  produced  a  forged  note,  or  forged  instrument,  in 
like  manner  as  if  each  of  them  had  been  falsely  made  or 
foi'ged. 

Sec.  1038.  Forgery  and  counterfeiting  of  private  marks, 
stamps  or  labels.    1870-'l,  c.  353.  s.  1. 

Every  person  who  shall  knowingly  and  wilfully  forge, 
or  counterfeit  or  cause  or  procure  to  be  forged  or  counter- 


Chap.  25.]    CRIMES  AND  PUNISHMENTS.  423 

feited,  the  private  marks,  tokens,  stamps  or  labels  of  auy 
mechanic,  manufacturer  or  other  person  bemg  a  resident 
of  this  state  or  of  the  United  States,  with  intent  to  de- 
ceive and  defraud  the  purchasers,  mechanics  or  manu- 
facturers of  any  goods,  wares  or  merchandise  whatso- 
ever, upon  conviction  thereof  shall  be  punished  by  a  hne 
of  not  less  than  fifty  dollars  and  not  exceeding  one  thou- 
sand dollars,  or  by  imprisonment  of  not  less  than  thirty 
days  or  more  than  five  years,  or  both  fine  and  imprison- 
ment, at  the  discretion  of  the  court. 

Sec.  1030.  Forgery  and  counterfeiting,  penalty  for  selling 
merchandise   with   forged    or    counterfeited    marks, 
stamps  or  labels.    1870-'l,  c.  253,  s.  2. 
Every  person  who  shall  vend  any  goods,  wares  or  mer- 
chandise having  thereon  any  forged  or  counterfeited 
marks,  tokens,  stamps  or  labels  purportmg  to  be  the 
marks,  tokens,  stamps  or  labels  of  any  person  bemg  a 
resident  of  the  state  or  of  the  United  States,  knowing 
the  same  at  the  time  of  the  purchase  thereof  by  him  to 
be  forged  or  counterfeited,  shall  be  guilty  of  a  misde- 
meanor,  and  punished  by  imprisonment  in  the  county 
iail  not  exceeding  six  months,  or  by  a  fine  not  exceeding 
one  hundred  dollars,  or  by  both  fine  and  imprisonment, 
at  the  discretion  of  the  court. 

Sec.  1040.  Forgery  and  counterfeiting,  fraudulent  use  of 
brands.     1874-'5,  c.  225. 

If  any  person  shall  knowingly  use  the  mark  or  brand 
of  any  other  person  on  any  sack,  or  shall  knowingly  im- 
press on  any  sack  the  mark  or  brand  of  another  person, 
with  intent  to  defraud  or  for  the  purpose  of  enhancmg 
the  value  of  his  own  property,  the  person  so  offending 
shall  be  guilty  of  a  misdemeanor,  and  punished  as  if  con- 
victed of  larceny. 

Sec.  1041.  Fornication  and  adultery.    K.  C,  c.  34,  s.  45. 
1805,  c.  084. 

If  any  man  and  woman,  not  being  married  to  each 
other  shall  lewdly  and  lasciviously  associate,  bed  and 
cohabit  together,  they  shall  be  guilty  of  a  misdemeanor : 
Provided,  that  the  admissions  or  confessions  of  one  shaU 
not  be  received  in  evidence  against  the  other. 

Slate  V  Cox  N.  C.  T.  R..  105;  Stale  v.  Aldridge,  3  Dev.,  331;  State  v. 
Dickenson,  1  D.  &  B.,  349;  State  v.  Jolly,  3  D.  &  B.,  110;  Stale  v.  Fore, 
1  Ired  378;  Slate  v.  Waters,  3  Ired,,  455;  State  v.  Cowell,  4  Ired.,  231, 
State  v  Hooper,  5  Ired.,  201;  State  v.  Mainor.  6  Ired.,  340;  State  v.  Poteet; 


42i  CRIMES  AND  PUNISHMENTS.     [Chap.- 25. 

8  Ired.,  23;  State  v.  Parham,  5  Jon.,  41G;  State  v.  Lyeily,  7  Jon.,  158-  State 
V.  Mdtou,  Busb.,  49;  State  v.  Sclilach ter,  Pliil.,  520;  Slate  v.  Hairston 
63—451;  State  V.  Reiubaidt.  G3— 547;  State  v.  Custer.  05—330;  State  v.' 
Adams,  65— 537;  State  v.  Vermington,  71—204;  State  v.  Perry '  71— 523'. 
State  V.  Folly,  74-333;  State  v.  Phipps,  70-203;  Slate  v.  Ross',  76-342" 
Slate  V.  Kennedy,  70—251;  State  v.  Ballard,  79—027;  State  v.  Waller' 
80—401 ;  State  v.  Lashley,  84—754;  State  v.  Kemp,  87—538. 

Sec.  1042.  Gambling,  betting  at  cards  in  tavern  or  retail 
bouse,  a  misdemeanor.  R.  C,  c.  34,  s.  75  1799  c 
626.     1801,  c.  581,     1831,  c.  26. 

If  any  person  shall  bet  money,  property,  or  other  thing 
of  value,  whether  the  same  be  in  stake  or  not.  at  any 
game  of  cards  which  shall  be  played  in  any  ordinary 
tavern,  or  house  of  entertainment,  or  in  any  house 
wherein  spirituous  liquors  are  retailed,  or  on  any  part  of 
the  premises  occupied  with  such  ordinary,  tavern,  house 
of  entertainment,  or  house  wherein  spirituous  liquors 
are  sold  as  aforesaid,  or  shall  play  at  such  game  of  cards- 
the  person  so  offending  shall  be  guiltv  of  a  misdemeanor' 
and  any  fine  imposed  shall  Jiot  be  less  than  ten  dollars.    ' 

State  V.  Terry,  4  D.  &  B.,  185;  State  v.  Smitlaerman,  1  Ired.,  14;  State 
V.  Black,  9  Ired.,  378;  State  v.  Keisler,  6  Jon.,  73;  State  v'  Br'annen 
8  Jon..  208. 

Sec.  1043.  Gambling,  keeper  of  tavern  or  liquor  sbop,  al- 
lowing- games  to  be  played  in  bis  house,  guilty  of  a  mis- 
demeanor.   R.  C,  c.  34,  s.  76.     1799,  c.  526.    1801 
c.  581.    1831,  c.  26. 

If  any  keeper  of  an  ordinary,  or  house  of  entertain- 
ment, or  of  a  house  wherein  liquors  are  retailed,  shall 
knowingly  suffer  any  game,  at  which  money  or  property 
or  anything  of  value,  is  bet,  whether  the  same  be  in  stake 
or  not,  to  be  played  in  any  such  house,  or  on  any  part  of 
the  premises  occupied  therewith;  or  shall  furnish  persons 
so  playing  or  betting  with  drink  or  other  thing  for  their 
comfort  or  subsistence  during  the  time  of  play,  he  shall 
be  guilty  of  a  misdemeanor,  and  fined  not  less  than  ten 
dollars,  and  be  imprisoned  not  more  than  thu-ty  days. 

State  V.  Keisler,  6  Jon.,  73. 

Sec.  1044.    Gambling,  faro-banks  and  tables  prohibited. 
R.  C,  c.  34,  s.  71.    1848.  c.  34.     1856-'7,  c.  25. 

If  any  person  shall  open,  establish,  use,  or  keep  a  faro- 
bank  or  a  faro-table,  with  the  intent  that  games  of  chance 
may  be  played  thereat,  or  shall  play  or  bet  thereat  any 
money,  property,  or  thing  of  value,  whether  the  same  be 
m  stake  or  not,  be  shall  be  guilty  of  a  misdemeanor  and 


Chap.  25.]    CRIMES  AND  PUNISHMENTS.  425 

fined  at  least  two  hundred  dollars  and  imprisoned  not 
less  than  three  months. 

State  V.  Keislcr,  6  Jon.,  73;  State  v.  Brannen,  8  Jon.,  208;  State  v.  Bryant, 
74—307. 

Sec.  1045,  Gambling,  gaming  tables  of  every  kind  pro 
liibited.  R.  C,  c.  34,  s.  73.  1791,  c.  336.  1798,  c. 
502,  s.  2. 

If  any  person  shall  establish,  use  or  keep  any  gammg- 
table  (other  than  a  faro-bank)  by  whatever  name  such 
table  may  be  called,  at  which  games  of  chance  shall  be 
played,  he  shaU  on  conviction  thereof  be  fined  not  less 
than  two  hundred  dollars,  and  be  imprisoned  not  less 
than  thirty  days;  and  every  person  who  shall  play  there- 
at or  thereat  bet  any  money,  property  or  thing  of  value, 
whether  the  same  be  in  stake  or  not,  shall  be  guilty  of  a 
misdemeanor,  and  any  fine  imposed  on  the  offender  shall 
not  be  less  than  ten  dollars. 

State  V.  Bishop,  8  Ired.,  266;  State  v.  Gupton,  8  Ired.,  271;  State  v. 
Bryant,  74—207. 

Sec.  1046.  Gambling,  person  allowing  gaming-tables  on 
his  premises  indictable.  K.  C,  c.  34,  s.  73.  1798,  c. 
502,  s.  3.    1800,  c.  552. 

If  any  person  shall  knowingly  suffer  to  be  opened, 
kept  or  used  in  his  house  or  any  part  of  the  premises 
occupied  therewith,  any  of  the  gaming-tables  by  this 
chapter  prohibited,  he  shall  forfeit  and  pay  to  any  one 
who  will  sue  therefor  two  hundred  dollars,  and  shall 
also  be  guilty  of  a  misdemeanor  and  fined  and  imprisoned. 

State  V.  Keisler,  6  Jon.,  73. 

Sec.  1047.  Gambling,  lotteries  forbidden.  R.  C,  c.  34,  s. 
69.    1834,  c.  19,  s.  1.    1874-'5,  c.  96. 

If  any  person  shall  open,  set  on  foot,  carry  on,  promote, 
make  or  draw,  publicly  or  privately,  a  lottery,  by  what- 
ever name,  stvle  or  title  the  same  may  be  denominated  or 
known ;  or  if"  any  person,  by  such  way  and  means,  ex- 
pose or  set  to  sale  any  house  or  houses,  real  estate,  or 
any  goods  or  chattels,  cash,  or  written  evidence  of  debt, 
or  certificates  of  claims,  or  anything  of  value  whatsoever; 
every  person  so  offending  shall  be  guilty  of  a  mis- 
demeanor, and  be  fined  not  exceeding  two  thousand 
dollars,  or  imprisoned  not  exceeding  six  months,  or  both, 
in  the  discretion  of  the  court.  Anypeison  or  society, 
association,  company  or  organization  of  personswhat- 
soever,  who  engage   in   disposing   of    any    species    of 


426  CRIMES  AND  PUNISHMENTS.     [Chap.  25. 

property  whatsoever,  money  or  evidences  of  debt,  or  in 
any  manner  distribute  gifts  or  prizes  upon  tickets  or 
certificates  sold  for  that  purpose,  shall  be  held  liable  to 
indictment  and  prosecution  under  this  section. 

Slate  V.   Krebs,   64—604;  State  v.   Bryant,  74—207;  State  v.   Morris 

77—513. 

Sec.  1048.  Gambling,  sale  of  lottery  tickets  forbidden. 
K.  C,  c,  34,  s.  70.    1834,  c.  19,  s.  2. 

If  any  person  shall  sell,  barter  or  dispose  of  any  lottery 
ticket  or  order,  for  any  number  or  shares  in  any  lottery, 
or  shall  in  anywise  be  concerned  in  such  lottery,  by  act- 
ing as  agent  in  the  state  for  or  on  behalf  of  any  such 
lottery,  to  be  drawn  or  paid  either  out  of  or  within  the 
state,  such  person  shall  be  guilty  of  a  misdemeanor,  and 
punished  as  in  the  preceding  section. 

Sec.  1049.  Gambling,  justices  of  the  peace  and  otlier  offi- 
cers directed  to  destroy  gaming  tables.  It.  C,  c.  34,  s 
74,     1791,  c.  330.     1798,  c.  502,  s.  2. 

All  justices  of  the  peace,  sheriffs,  constables,  and  offi- 
cers of  police  are  hereby  authorized  and  directed,  on  in- 
formation made  to  them  on  oath,  that  any  gaming  talile 
prohibited  to  be  used  by  this  chapter,  is  in  the  posses- 
sion or  use  of  any  person  within  the  hmits  of  their  ju- 
risdiction, to  destroy  the  same  by  every  means  in  their 
power;  and  they  shall  call  to  their  aid  all  tlie  good  citi- 
zens of  the  county,  if  necessary,  to  effect  their  destruc- 
tion. 

Sec.  1050.  Gambling,  justices  and  otlier  judicial  officers 
authorized  to  summon  witnesses  touching  the  where- 
abouts of  gaming  tables.    1858-'9,  c,  34,  s.  1. 

All  justices  of  the  peace,  intendants  and  magistrates  of 
police,  mayors  of  towns,  and  judges  of  the  supreme  or 
superior  court,  who  shall  have  good  reason  to  behevethat 
any  person  within  their  jurisdictions  has  knowledge  of 
the  existence  and  establishment  of  any  faro-bank  or  faro- 
table,  or  gambling  tables,  ))rohibited  by  this  chapter,  in  any 
town  or  county  within  their  seveial  jurisdictions,  and 
such  person  not  being  minded  to  make  voluntary  informa- 
tion thereof  on  oath,  then  it  shall  be  lawful  for  such  jus- 
tice of  the  peace,  intendant  and  magistrate  of  police, 
mayor  of  town,  or  judge  of  supreme  or  superior  court,  to 
issue  to  the  sheriff  of  the  county,  or  any  constable  of  the 
town  or  township  in  which  said  faro-bank  or  faro- table, 
or  gaming  table  or  tables  are  supposed  to  be,  a  subpoena 


Chap.  25.]    CRIMES  AND  PUNISHMENTS.  427 

capias  ad  testificandum,  or  summons  in  writing,  corn- 
manding  such  person  to  appear  immediately  before  said 
ju4ice  of  the  peace,  intendant  or  magistrate  of  police, 
mayor  or  judge,  and  give  evidence  on  oath  as  to  what 
he  may  know  touching  the  existence,  establishment  and 
whereabouts  of  said  gaming  table  or  tables,  faro-bank 
or  faro-table,  and  the  names  and  personal  description  of 
the  keepers  thereof;  and  such  evidence  when  obtained 
shall  be  considered  and  held  in  law  as  an  information 
on  oath,  and  said  justice,  intendant,  magistrate,  mayor 
or  judge,  may  thereupon  proceed  to  seize  and  arrest 
said  keepers  and  destroy  said  tables,  or  issue  process 
therefor,  in  like  manner  as  they  may  do  by  authority 
of  the  preceding  section. 

Sec.  1051.  Gambling,  money  or  property  bet  at  any  pro- 
hibited game  liable  to  be  seized.  K.  C,  c.  34,  s.  77. 
1798,  c.  502,  s.  3. 

All  moneys,  or  other  property  or  thing  of  value  ex- 
hibited for  the  purpose  of  alluring  persons  to  bet  at  any 
prohibited  game,  or  actually  staked  or  bet  on  such 
game,  shall  be  hable  to  be  seized  by  any  justice  of  the 
peace,  or  by  any  person  acting  under  his  warrant.  And 
the  moneys  or  other  property  or  thing,  which  shall  be 
so  seized,  shall  belong  one-half  to  the  person  seizing 
them,  and  the  other  half  to  the  use  of  the  poor. 

Sec.  1052.  Gambling,  persons  opposing  destruction  of 
gaming  tables  or  seizure  of  moneys  staked  on  forbid- 
den games,  bow  punisbed.  K.  C,  c.  34,  s.  78.  1798,  c. 
502,  s.  4. 

If  any  person  shall  oppose  the  destruction  of  any  pro- 
hibited gaming  table,  or  the  seizure  of  any  moneys, 
property,  or  other  thing  staked  on  forbidden  games,  or 
shall  take  and  carry  away  the  same  or  any  part  thereof 
after  seizure,  he  shall  forfeit  and  pay  to  the  person  so 
opposed  one  thousand  dollars,  for  the  use  of  the  state 
and  the  person  so  opposed;  and  shall,  moreover,  be  guilty 
of  a  misdemeanor. 

Sec.  1053.  Ginseng,  penalty  for  digging,  between  April 
and  September.    186C-'7,  e.  60. 

Any  person  digging  ginseng  between  the  first  day  of 
April  and  the  first  day  of  September,  shall  forfeit  and 
pay  the  sum  of  ten  dollars  for  each  day  or  part  of  a 
day's  digging,  and  shall  also  be  guilty  of  a  misdemeanor: 


428  CRIMES  AND  PUNISHMENTS.     [Chap.  25. 

Provided,  that  no  man  shall  be  prevented  from  destroy- 
mg  ginseng  upon  his  own  premises. 

Sec.  1064.  Highways  and  public  roads,  overseer  of,  iiee- 
lecting  his  duty.  K.  C,  c.  34,  s.  39.  1786,  c.  256 
s.  4.  ' 

Every  overseer  of  a  road,  who  shall  wilfully  neglect 
any  of  the  duties  imposed  on  him  by  law,  shall  be  guiltv 
or  a  misdemeanor.  •' 

State  V.  Everit,  2  Car.  L.  R.,  633;  State  v.  Nicholson,  2  Mur  135-  State 
V.  Small.  11  Ired.,  571;  State  v.  Long,  76-254;  State  v.  Long  81-563- 
State  V.  McDowell,  84r— 798. 

Sec.  1055.  Homicide,  manslaughtfer,  punishment  there- 
for. 1879,  c.  255.  K.  C,  c.  34,  s.  24.  4  Hen  VII  o 
13,    1816,  c.  918.  ' 

Every  person  who  shall  commit  the  crime  of  man- 
slaughter shall  be  punished  by  imprisonment  in  the 
county  jail  or  penitentiary  not  less  than  four  months  nor 
more  than  twenty  years. 

Sec.  1056.  Homicide,  manslaughter,  punishment  for  sec- 
ond oflfence.    K.  C,  c.  34,  s.  25. 

Every  person  who,  having  been  convicted  of  the  crime 
of  manslaughter  and  sentenced  thereon,  shall  be  con 
victed  of  a  second  crime  of  the  like  nature,  shall  be  im- 
prisoned in  the  penitentiary  not  less  than  five  nor  more 
than  sixty  years;  and  in  every  such  case  of  conviction 
for  such  second  offence,  the  prior  conviction  of  the  same 
person  and  sentence  thereon  may  be  shown  to  the  court. 

Sec.  1057.  Homicide,  murder,  its  punishment.  lS68-'9 
e.l67,  s,  1.  K.  C,  c.  34,  s.  2.  1  Edw.  VI,  c.  12,  s  lo' 
23  Hen.  VIII,  c.  1,  s.  3.  25  Hen.  VIII,  c.  3.  8  Eliz  ' 
c.  4.     18  Eliz.,  c.  7,  s.  1.  ' 

Every  person  who  is  convicted,  in  due  course  of  law 
of  any  wilful  murder  of  malice  prepense,  shall  suffer 
death. 

State  V.  King,  64—419. 

Sec.  1058.  Hunting  for  deer  by  fire-light.  R.  C.  c  34  s 
95.  1784,  c.  212,  ss.  1,  3.  1801,  c.  595.  1856-'7*  c' 
24.     1879,  c.  92.  ' 

If  any  person  shall  hunt  for  deer  with  a  gun  or  guns 
in  the  woods  in  the  night-time,  by  fire-light,  the  person 
so  offending  shall  be  guilty  of  a  misdemeanor,  and  shall 


Chap.  25.]    CEIMES  AND  PUNISHMENTS.  429 

pay  a  fine  not  exceeding  fifty  dollars,  or  be  imprisoned 
not  exceeding  thirty  days. 

Sec,  1050.  Hunting  by  fire-ligbt,  accomplices.  K.  C,  c. 
34,  s.  96.     1774,0.  103. 

When  more  persons  than  one  are  engaged  in  commit- 
ting the  offence  of  fire-hnnting,  any  one  may  be  com- 
pelled to  give  evidence  against  all  others  concerned;  and 
the  witness,  upon  giving  such  information,  shall  be  ac- 
quitted and  held  discharged  from  all  penalties  and  pains 
to  which  he  was  subject  by  his  participation  iu  the 
offence. 

Sec.  1060.  Incest,  carnal  intercourse  between  grand  par- 
ent and  grand  cbild,  parent  and  cbild,  brother  and  sis- 
ter, a  felony.    1879,  c.  16,  s.  1. 

In  all  cases  of  carnal  intercourse  between  grand  par- 
ent and  grand  child,  parent  and  child,  and  brother  and 
sister,  of  the  half  or  whole  blood,  the  parties  shall  be 
guilty  of  felony,  and  punished  for  every  such  offence  by 
imprisonment  in  the  county  jail  or  penitentiary  for  a 
term  not  exceeding  five  years,  in  the  discretion  of  the 
court. 

State  V.  Keesler,  78—469. 

Sec.  1061.  Incest,  carnal  intercourse  between  uncle  and 
niece,  nephew  and  aunt,  a  misdemeanor.    1879,  c.  16, 

s.  2. 
In  all  cases  of  carnal  intercourse  between  uncle  and 
niece,  and  nephew  and  aunt,  the  parties  shall  be  guilty 
of  a  misdemeanor,   and  punished  by  fine  or  imprison- 
ment, in  the  disci'etion  of  the  court. 

Sec.  1062.  Injuries  to  bouses,  cburcbes  and  fences.  R.  C, 
c.  34,  s.  103. 

If  any  person  shall,  by  any  other  means  than  burning 
or  attempting  to  burn,  unlawfully  and  wilfully  demolish, 
destroy,  deface,  injure,  or  damage  any  of  the  liouses  oi- 
buildings  previously  mentioned  in  this  chapter;  or  shall 
unlawfully  and  wilfully  burn,  demolish,  pull  down,  de- 
stroy, deface,  damage,  or  injure  any  church,  uninhabited 
house,  outhouse,  or  other  house  or  building  not  men- 
tioned before  in  this  chapter;  or  shall  unlawfully  and 
wilfully  burn,  destroy,  pull  down,  injure,  or  remove  any 
fence,  wall,  or  other  inclosure,  or  any  part  thereof  sur- 
rounding or  about  any  yard,  garden,  cultivated  field  or 
pasture,    or  about  any  church,    grave-yard,   factory,   or 


430  CRIMES  AND  PUNISHMENTS.     [Chap.  25. 

other  house  in  which  machinery  is  used   every  nerson  <;n 
ofleudiug  shall  be  guilty  of  a  niisdemeanor  ^  ^ 

State  V.  Upchurch,  9  Ired.,  454;  State   v.  Allen,    13  Ircd     36-  State  v 

167,  Stae  v.  Graham,  8  Jon. ,  307;  State  v.  Williams,  Bu.b.,  197-  State  ^ 
Peny,  64-30o;  State  v.  Mace,  65-344;  State  v.  Koseman,  6G-C3rSate 
V  Rosemaa  70-235;  State  v.  Ilovis,  76-117;  State  v.  M^Minu  8I-5S 
State  V.  Padgett.  82-544;  State  v.  Midgett,   85-538;  State  v.  Waloc    86 

^^\lSs%f^ri7!''''''''  P^'^^^y  f*''-  *"«""S  or  removing. 

^l/l^^'Tr''^''"  ^1^^".  wilfully  or  fraudulently  remove 
alterordetaceany  landmark,  in  anywise  whatsoever,  such 
person  shall  be  guilty  of  a  misdemeanor:  Provided,  that 
this  section  shall  not  apply  to  such  landmarks  as  creeks 
and  other  small  streams,  which  the  interest  of  agriculture 
may  require  to  be  altered  or  turned  from  their  channels. 

Sec.  1064.  Larceny  or  robbery  of  bank  notes  and  other 
securities.    K.  C,  c.  34,  s.  20,    18 H,  c.  814,  s.  1, 

If  any  person  shall  feloniously  steal,  take  and  carry 
away,  or  take  by  robbery,  any  bank  note,  check,  or  order 
tor  the  payment  of  money  issued  by,  or  drawn  on  any 
bank,  or  otlier  society  or  corporation  within  this  state,  or 
within  any  of  the  United  States,  or  any  treasury  warrant 
debenure,  certificate  of  stock,  or  other  public  security! 
or  certificate  of  stock  in  any  corporation,  or  any  order 
bill  of  exchange  bond,  promissory  note,  or  other  obliga- 
tion, either  for  the  payment  of  money  or  for  the  delivery 
ot  specific  articles,  being  the  property  of  any  other  per- 
son or  of  any  corporation,  (notwithstanding  any  of  the 
said  pai-ticulars  may  be  termed  in  law  a  chose  in  action  ) 
such  felonious  stealing,    taking  and  carrying  away    or 
taking  by  robbery,  shall  be  felony  of  the  same  nature  and 
degree,  and  in  tjie  same  manner  as  it  would  have  been  if 
the  ottender  had  feloniously  stolen,  or  taken  by  robbery 
money,  goods,  or  property  of  any  value,  and  such  offen- 
der for  every  such  offence,  shall  suffer  such  punishment, 
and  be  subject  to  the  same  pains,  penalties  and  disabili- 
ties as  he  should  or  might  have  suffered,  if  lie  had 
te  omously  stolen  or  taken  by  robbery  money,  goods  or 
other  property  of  value. 

State  V.  Rout,  3  Hawks,  618;  State  v.  Brown.  8  Jon.,  443-  State  v  Ful- 
ford.  Phil..  563;  State  v.  Banks;  Phil.,  577;  State  v.  Thoma.son  71-ll40- 
State  V.  Carter.  72-99;  Slate  v.  Collins,  72-144;  State  v.  Freeman  73- 
521;  State  v.  Dill.  75—257. 


Chap.  25.]    CRIMES  AND  PUNISHMENTS.  431 

Sec.  1065.  Larceny,  by  servant  of  master's  goods.  R.  C, 
c.  34,  s.  18.  31  Hen.  VIII,  c.  7,ss.  1,  2.  39  Geo.  Ill, 
c.  85.  7,  8  Geo.  IV,  c.  29,  s.  47.  24,  25  Vict.,  c.  96, 
s.  68. 

If  any  servant  or  employee,  to  whom  any  money, 
goods,  or  other  chattels,  or  any  of  the  articles,  securities, 
or  choses  in  action  mentioned  in  the  preceding  section, 
by  his  master  shall  be  delivered  safely  to  be  kept  to  the 
usf  of  his  master,  shall  withdraw  himself  from  his  master, 
and  go  away  with  the  said  money,  goods,  or  other  chat- 
tels, or  any  of  the  articles,  securities,  or  choses  in  action 
mentioned  as  aforesaid,  or  any  part  thereof,  with  intent 
to  steal  the  same  and  defraud  his  master  thereof,  con- 
trary to  the  trust  and  confidence  in  him  reposed  by  said 
master;  or  if  any  servant,  being  in  theserviceof  his  mas- 
ter, without  the  assent  of  his  master,  shall  embezzle  such 
money,  goods,  or  other  chattels,  or  any  of  the  articles, 
securities,  or  choses  in  action  mentioned  as  aforesaid,  or 
any  part  thereof,  or  otherwise  convert  the  same  to  his 
own  use,  with  like  purpose  to  steal  them,  or  defraud  his 
master  thereof,  the  servant  so  offending  shall  be  fined,  or 
imprisoned  in  the  penitentiary  or  county  jail,  not  less 
than  four  months  nor  more  than  ten  years,  at  the  dis- 
cretion of  the  court:  Provided,  that  nothing  in  this  sec- 
tion contained  shall  extend  to  apprentices,  or  servants, 
within  the  age  of  eighteen  years. 

Stale  V.  Higgins,  Mar.,  6a  (59);  State  v.  Jarvis,  63—508;  State  v.  Ed- 
wards, 86—666. 

Sec.  1066.  Larceny,    horse-stealing.    1868,  c,  37,  s.   1. 
1879,  c.  234,  s.  3.     1866-'7,  c.  62. 

Every  person  who  shall  steal  any  horse,  mare,  gelding 
or  mule,  shall  suffer  imprisonment  at  hai-d  labor  for  not 
less  than  five  nor  more  than  twenty  years,  at  the  discre 
tion  of  the  judge. 

A  count  under  this  section  may  be  joined  in  a  bill  of 
indictment  with  a  count  under  the  succeeding  section. 

Slate  V.  Adams.  1  Hay,  463  (534);  State  v.  Putney,  Phil.,  543;  State 
V.  Evans,  69—40;  State  v.  Bryant,  74—124;  State  v.  Johnson,  75—133;  State 
V.  Lawrence,  81 — 136. 

Sec.  1007.  Larceny,  stealing  horse  for  temporary  use  or 
purpose.    1879,  c.  234,  s.  1. 

If  any  person  shall  unlawfully  take  and  carry  away 
any  horse,  gelding,  mare  or  mule,  the  property  of  an- 
other person,  secretly  and  against  the  will  of  the  owner 
of  said  proi>erty,  with  intent  to  deprive  the  owner  of 


432  CRIMES  AND  PUNISHMENTS.     [Chap.  25. 

said  property  of  the  special  or  temporary  use  of  the  same 
or  with  the  intent  to  use  said  property  for  a  special  or 
temporary  purpose,  the  person  so  ofifending  shall  be 
guilty  of  larceny,  and  punished  by  imprisonment  in 
the  penitentiary  or  county  jail,  not  less  than  four  months 
nor  more  than  ten  years,  and  fined,  in  the  discretion  of 
the  court:  Provided,  this  section  shall  not  be  construed 
to  repeal  or  m  any  way  affect  the  preceding  section. 

Sec.  1068.  Larceny,  the  felonious  injury  to,  or  pursuit  of, 
live  stock,  with  intent  to  appropriate  the  same,  a  mis- 
demeanor.    1866,  c.  57. 

If  any  person  shall  pursue,  kill  or  wound  any  horse 
niule,  ass,  jenny,  cattle,  hog,  sheep  or  goat,  the  property 
of  another,  with  the  intent  unlawfully  and  feloniously 
to  convert  the  same  to  his  own  use,  he  shall  be  guilty  of 
a  misdemeanor,  and  shall  be  punishable,  in  all  respects 
as  if  convicted  of  larceny,  though  such  animal  may  not 
have  come  into  the  actual  possession  of  the  person  so  of- 
fendmg.  And  all  persons  commanding,  counselling  ad- 
vising, aiding  or  abetting  any  of  such  unlawful  acts  shaU 
be  punished  in  hke  manner,  and  may  be  prosecuted  alone, 
or  with  the  principal  actor. 

State  V.  Butler,  65—309;  State  v.  Folder,  81—527. 

Sec.  1069.  Larceny  of  growing  crops  or  vegetables. 
1811,  c.  816.  R.  C,  c.  34,  s.  21.  1868-'9,  c.  351. 
Ef  any  person  shall  steal,  or  feloniously  take  and  cany 
away  any  maize,  corn,  wheat,  rice,  or'  other  grain,  or 
any  cotton,  tobacco,  potatoes,  peanuts,  pulse,  or  any 
fruit,  vegetable,  or  other  product  cultivated  for  food  or 
market,  growing,  standing  or  remaining  ungathered  in 
any  field  or  ground,  he  shall  be  guilty  of  larceny,  and 
punished  accordingly. 

Flynt  V.  Conrarl,  Piiil.  190;  State  v.  Cherry,  73—123;  Slate  v.  Graham 
76-195;  State  v.  Lilcs,  78-496;  State  v.  Foy,  83-679;  State  v.  Bragg  86 
—687;  State  v.  Copeland,  86—691;  State  v.  Webb,  87—558. 

Sec.  1070.  Larceny  of  wood  or  other  property,  growing 
or  being  upon  land.     1866,  c.  60. 

If  any  person,  not  being  the  present  owner  or  bona  fide 
claimant  thereof,  shall  wilfully  and  unlawfully  enter 
upon  the  lands  of  another  and  carry  off  or  be  engaged  in 
carrying  off  any  wood  or  other  kind  of  property  whatso- 
ever, growing  or  being  thereon,  the  same  being  the 
property  of  the  owner  of  the  premises,  or  under  his  con- 
trol, keepmg  or  care,  such  person  shaU,  if  the  act  be 


Chap.  25.]    CRIMES  AND  PUNISHMENTS.  433 

done  with  felonious  intent,  be  guilty  of  larceny,  and  pun- 
ished as  for  that  offence.  And  if  not  done  with  such  in- 
tent, shall  be  guilty  of  a  misdemeanor. 

State  V.  Crossett,  81—579;  State  v.  Dudley,  83—660. 

Sec.  1071.  Larceny  or  obliteration  of  public  records,  or 
fraudulent  removal  of  registration  book ;  not  neces- 
sary to  allege  ownership  or  value.  R.  C,  c.  34,  s.  31. 
8  Hen.  VI,  c.  13.     1881,  c.  17. 

If  any  person  shall  steal,  or  for  any  fraudulent  pur- 
pose, shall  take  from  its  place  of  deposit  for  the  time  be- 
ing, or  from  any  person  having  the  lawful  custody  there- 
of, or  shall  unlawfully  and  maliciously  obliteiate,  injure 
or  destroy  any  record,  writ,  return,  panel,  process,  inter- 
rogatory, deposition,  affidavit,  rule,  order  or  wan  ant  of 
attorney  or  any  original  document  whatsoever,  of  or  be- 
longing to  any  court  of  recoid,  or  relating  to  any  matter 
civil  or  criminal,  begun,  pending  or  temiinated  in  any 
such  court,  or  any  bill,  answer,  interrogatory,  deposition, 
affidavit,  order  or  decree  or  any  original  document  what- 
soever, of  or  belonging  to  any  court  or  relating  to  any 
cause  or  matter  begun,  pending  or  terminated  in  any 
such  court,  every  such  offender  shall  be  guilty  of  a  mis- 
demeanor; and  in  any  indictment  for  such  offence  it 
shall  not  be  necessary  to  allege  that  the  article,  in  respect 
to  which  the  offence  is  committed,  is  the  property  of  any 
person  or  that  the  same  is  of  any  value.  And  if  any  per- 
son shall  steal,  or  for  any  fraudulent  purpose  shall  take 
from  the  register's  office,  or  from  any  person  having  the 
lawful  custody  thereof,  or  shall  unlawfully  and  wilfully 
obliterate,  injure  or  destroy  any  book  wherein  deeds  or 
other  instruments  of  writing  are  registered,  or  any  other 
hook  of  registration,  or  record  required  to  be  kept  by  the 
register  of  deeds,  or  shall  unlawfully  destroy,  obliterate, 
deface  or  remove  any  lecord  of  proceedings  of  the  board 
of  county  commissioners,  or  unlawfully  and  fraudulent- 
ly abstract  any  record,  receipt,  order  or  voucher  or  other 
paper  writing  required  to  be  kept  by  the  clerk  of  the 
board  of  commissioners  of  any  county,  he  shall  be  guilty 
of  a  misdemeanor. 

Sec.  1072.  Larceny,  fraudulent  concealment  or  destruc- 
tion of  wills.    B.  C,  c.  34,  s.  33. 

If  any  person,  either  during  the  life  of  the  testator  or 
after  his  death,  shall  steal  or  for  any  fraudulent  purpose 
destroy  or  conceal  any  will,  codicil  or  other  testamentary 
instrument,  he  shall  be  guilty  of  a  misdemeanor. 

19 


43i  CRIMES  AND  PUNISHMENTS.     [Chap.  25. 

Sec.  1073.  Liarceny,  fraudulent  disposition  by  clerk,  or 
other  custodian  of  the  public  laws,  reports  of  supreme 
court  or  other  public  documents,  a  misdemeanor. 
1881,  c.  151. 

It  shall  be  the  duty  of  the  clerk  of  the  superior  court  of 
each  county,  and  every  other  person  to  whom  the  acts  of 
the  general  assembly,  supreme  court  reports,  or  other 
public  documents,  are  transmitted  or  deposited  for  the 
use  of  the  county  or  the  state,  to  safely  keep  the  same  in 
their  respective  offices;  and  if  any  such  person  having 
the  custody  of  such  books  and  documents,  for  the  uses 
aforesaid,  shall  negligently  and  wilfully  dispose  of  the 
same,  by  sale  or  otherwise;  or  refuse  to  deliver  over  the 
same  to  his  successor  in  office,  he  shall  be  guilty  of  a 
misdemeanor,  and  punished  by  fine  or  imprisonment,  or 
both,  at  the  discretion  of  the  court. 

Sec.  1074.  Larceny,  receivers  of  stolen  goods,  punishment 
of.    K.  C,  c.  34,  s.  56.    1797,  c.  485,  s.  2. 

If  any  person  shall  receive  any  chattel,  property, 
money,  valuable  security,  or  other  thing  whatsoever,  the 
steahng  or  taking  whereof  shall  amount  to  larceny  or 
felony,  either  at  common  law  or  by  virtue  of  any  statute 
made  or  hereafter  to  be  made,  such  person  knowing  the 
same  to  have  been  feloniously  stolen  or  taken,  every  such 
receiver  shall  be  guilty  of  a  misdemeanor,  and  may  be 
indicted  and  convicted,  whether  the  felon  stealing  and 
taking  such  chattels,  property,  money,  valuable  security, 
or  other  thing,  shall  or  shall  not  have  been  previously 
convicted,  or  shall  or  shall  not  be  amenable  to  justice; 
and  any  such  receiver  may  be  dealt  with,  indicted,  tried 
and  punished  in  any  county  in  which  he  shall  have,  or 
shall  have  had,  any  such  property  in  his  possession,  or  in 
any  county  in  which  the  thief  may  be  tried,  in  the  same 
manner  as  such  receiver  may  be  dealt  with,  indicted, 
tried  and  punished  in  the  county  where  he  actually  re- 
ceived such  chattel,  money,  security,  or  other  thing;  and 
such  receiver  shall  be  punished  as  one  convicted  of 
larceny. 

State  V.  Ives,  13  Ired.,  338;  State  v.  Minton,  Pliil.,  190;  State  v.  Beatty, 
Phil..  52;  S(ate  v.  Phelps,  65—450;  Slate  v.  Rushing,  69—29;  Stale  v. 
Britc,  78—26;  State  v.  Cavcness,  78—484;  State  v.  Lawrence,  81—523; 
State  V.  Jones,  82 — 685;  State  v.  Morrison,  85—561. 

Sec.  1075.  Larceny,  distinction  between  grand  and  petit 
larceny  abolished.  R.  C.,  c.  34,  s.  26. 

AH  distinctions  between  petit  and  grand  larceny,  where 


I 


Chap.  25.]    CRIMES  AND  PUNISHMENTS.  435 

the  same  hath  had  the  benefit  of  clergy,  is  abolished;  and 
the  offence  of  felonious  steahug,  where  no  other  punish- 
ment shall  be  specifically  prescribed  therefore  by  statute, 
shall  be  punished  as  petit  larceny  is:  Provided,  thai  m 
cases  of  much  aggravation,  or  of  hardened  offenders,  the 
court  may,  in  its  discretion,  sentence  the  offender  to  the 
penitentiary  for  a  period  not  exceeding  ten  years. 

State  V.  Minton,  Phil.,  196;  State  v.  Kearzey,  Phil.,  481;  State  v. 
Haughton,  63—491;  State  v.  Ratts,  63-503;  State  v.  Brite,  73-36 ;  State 
V.  Gaston,  73—96;  State  v.  Lawrence,  81—535;  State  v.  Tyler,  85—569. 

Sec.  1076.  Liquor  selling,  retailing  without  license.  B.  C, 
€.34,8.94.  1825,  c.  1272,  s.  5.  1874-'5,  c.  39.  Pas- 
sim,, 1798,  c.  501.    1816,  c.  906. 

If  any  person  shall  retail  spirituous  liquors  by  the 
small  measure  in  any  other  manner  than  is  prescribed  by 
law,  he  shall  be  guilty  of  a  misdemeanor,  and  shall  be 
fined  or  imprisoned,  or  both,  in  the  discretion  of  the 
court. 

State  V.  Shaw,  2  Dev.,  198;  State  v.  Morrison,  3  Dev.,  299;  State  v. 
Faucett,  4  D.  &  B.,  107;  State  v.  Kirkham,  1  Ired.,  384;  State  v.  Moore,  1 
Jon.,  276;  Commissioners  of  Raleigh  v.  Kane,  2  Jon.,  288;  State  v.  Bell, 
2  Jon.,  837;  State  v.  Gerhardt,  3  Jon.,  178;  State  v.  McNeely,  1  Winst., 
284;  State  v.  Dobson,  65—346;  State  v.  Simmons,  66—623;  State  v.  Stamey, 
71—202;  State  v.  Wray,  72—253;  State  v.  Lowry,  74—121;  State  v.  Hamp- 
ton, 77— 526;  State  V.  Packer,  80—439;  State  v.  Joyner,  81—534;  State  v. 
McMinn.  83—668;  State  v.  Midgett,  85—538;  State  v.  Poteat,  86—613; 
State  V.  Wool,  86—708;  State  v.  Propst,  87—560. 

Sec.  1077.  Liquor  selling  to  minors  forbidden.  1873-'4,  c. 
68.  1881,  c.  242. 
It  shall  be  unlawful  for  any  dealer  of  intoxicating 
drinks  or  liquors  to  sell,  or  in  any  manner  to  part  with 
for  a  compensation  therefor,  either  directly  or  indirect- 
ly, or  to  give  away  such  drinks  or  hquors,  to  any  un- 
married person  under  the  age  of  twenty-one  years, 
knowing  the  said  person  to  be  under  the  age  of  twenty- 
one  years:  Provided,  that  such  sale  or  giving  away  shall 
be  pri7na  facie  evidence  of  such  knowledge.  Any  per- 
son who  keeps  on  hand  intoxicating  drinks  or  hquors  for 
the  purpose  of  sale  or  profit,  shall  be  considered  a  dealer 
within  the  meaning  of  this  section.  And  any  person 
violating  this  section  shall  be  guilty  of  a  misdemeanor. 

Sec.  1078.  Liquor  selling  to  minors;  the  father,  mother, 
guardian  and  employer  of  minor  may  sue  liquor  dealer 
for  damages.  1873-'4,  c.  68.  1881,  c.  242,  s.  2. 

.^The  father,  or  if  he  be  dead,  the  mother,  guardian  or 


436  CRIMES  AND  PUNISHMENTS.     [Chap.  25. 

employer  of  any  minor  to  whom  a  sale  or  eift  shall  h^ 

rThf  o^Zcttn  ?n  f  ^f  ^T^"^^  ^^«"«-'  S.all tavet 
S  ^  i^  ^^  ?  ^^""^^  ^"^<^  agamst  the  person  or  ner 
sons  so  offendmg  by  such  sale  or  gift,  and  upon  pi  oof  of 
such  ilhcit  s^e  or  gifts,  shall  recover 'from  S  party  or 
parties  so  offending,  such  exemplary  dama-es  as  a  hi,^ 
may  assess:  Provided,  that  such  assessmmitthall  not  Le 
less  than  twenty -five  dollars. 

Sec.  1079.  I.iqnor  sellingr  within  two  miles  of  public  politi- 
cal speakings  prohibited.     1 8 79,  c.  2 1 3.  PO""- 

It  shall  be  unlawful  for  any  person  to"  sell  or  to  e-ivP- 
away,  either  directly  or  indiiectly,  any  spirituous  liQu?^ 
wme  or  bitters  containing  alcohol,  -Within  two  nXs  of 
any  place  at  which  political  public  speaking  shal?  be  ad 

tTon  to  .*''  r^'  P'^?'  f'"^.  ^«^«  t^ki  place,^h  s  piSiibi- 
tion  to  continue  only  during  the  day  on  which  said  nub 
lie  political  speaking  shall  take  place.  And  any  person 
who  shall  violate  this  section  shlll  be  guilty  of  I  So 
t^fnTw'  ""f  1^?/^^^  "?*  ^'''  <^han  ten^dollLs  nor  loi^ 
dav?  T.?i^  '^''"f !',  ^'  imprisoned  not  exceeding  twen  v 
days.     Justic^of  the  peace  shaU  have  original  iurisdc 

duly  rii^^tf '"^^'  "^^"^""'  «^  -"^t-  -^--Sl,n 

"\^^:^"y?i^-rr?9r:::i^e^  i^ji- 
cdfnt^^fcfr^'-"' " '-  "•  "•  --.  (--^<^^"e 

If  any  person  shaU,  of  malice  aforethought,  unlawfully 
cutout  or  disable  the  tongue  or  put  outaneye™? 
person,  wrth  intent  to  murder,  maim  or  disfigui?  the  per 
son  so  offending,  his    counselors,  abettors^  and  aiders 
knowing  of  and  privy  to  the  offence,  shall,  for  the  first 
offence  be  punished  by  imprisonment  in  the  peiiteHtfai  y 
or  county  jail  not  less  than  four  months  no?  more  t ImJ 
ten  years  and  be  fined,  in  the  discretion  of  the  court 
and  for  the  second  offence  shall  be  imprisoned  in  the 
penitentiary    not    less  than  five    nor    m'ore  ?h1n  sixty 

State  V.  Irwin,  1  Ha,.,  130  (11.5);  State  v.  Bridges,  1  Mar.,  134-  State  v 

S^ILT  ■     ?:'.'  '''■■^'^''^-  G-"^-.  1  I-d.,  121 ;  State  V.  Green,  7Ired " 
(59;  State  V.  Sliidmore,  87— 509. 

Sec.  1081.  Malicious  injury  to  real  property.    K.  C.  c  34 
8.111.     187.3-'4.  c.  176,.s.6.  «•  ^m  c  J4, 

If  any  person  shall  maliciously  commit  any  damage. 


Chap.  25.]    CEIMES  AND  PUNISHMENTS.  437 

injury  or  spoil  upon  any  real  property  whatsoever,  either 
of  a  public  or  private  nature,  for  which  no  punishment 
is  provided  by  any  existing  law,every  person  so  offending 
shall  be  guilty  of  a  misdemeanor:  Provided,  that  noth- 
ing herein  shall  extend  to  any  case  where  the  party  tres- 
passing or  doing  the  injury  acted  under  a  fair  and  reason- 
able belief  that  he  had  a  right  to  do  the  act  complained 
of,  nor  to  any  trespass,  not  being  wilful  and  malicious, 
committed  in  hunting,  fishing  or  the  pursuit  of  game. 
When  the  owner  or  one  of  the  ownere  of  an  estate  in 
possession, shall  complain  of  the  injui-y  before  a  justice  of 
the  peace  of  the  county  in  which  the  offence  is  charged 
to  have  been  committed  before  the  regular  term  of  the 
supei'ior  court  next  after  the  commission  of  the  offence, 
and  shall  fail  to  state  in  his  complaint  that  the  damage 
exceeds  ten  dollars,  the  punishment,  upon  conviction  of 
the  offence,  shall  not  exceed  a  fine  of  fifty  dollars  or  im- 
prisonment for  thirty  days. 
State  V.  Ross,  4  Jon.,  315;  State  v.  Batcbelor.  72 — 468. 

Sec.  1082.  Malicious  injury  to  personal  property.  1876- 
♦7,  c.  18. 

If  any  person  shall  wilfully  injure  the  personal  prop- 
erty of  another,  through  malice  to  the  owner,  he  shall 
be  guilty  of  a  misdemeanor,  whether  the  property  be  de- 
stroyed or  not,  and  shall  be  punished  by  fine  or  imprison- 
ment, or  both,  in  the  discretion  of  the  court. 

Sec.  1083.  Marriages,  unlawful  with  female  under  four- 
teen years  of  age  without  consent  of  father.  R.  C,  c. 
34,  s.  46.     1820,  c.  1041,  ss.  1,  2. 

If  any  person  shall  marry  a  female  under  the  age  of 
fourteen  years,  he  shall  be  guilty  of  a  misdemeanor 

State  V.  Watts,  10  Ired.,  369. 

Sec.  1084.  Marriages,  unlawful  between  whites  and  ne- 
groes. Const.,  Art.  XrV.,  s.  8.  B.  C,  c.  68,  s.  7.  1834, 
c.  34.     1838-'9,  c.  24. 

All  marriages  between  a  white  person  and  a  negro,  or 
between  a  white  person  and  a  person  of  negro  descent  to 
the  third  generation  inclusive,  are  forever  prohibited, 
and  shall  be  void.  And  any  person  violating  this  section 
shall  be  guiltj^  of  an  infamous  crime,  and  punished  by 
imprisonment  in  the  county  jail  or  penitentiary,  not  less 
than  four  months  nor  more  than  ten  years,  and  may  also 
be  fined  in  the  discretion  of  the  court. 

State  V.  Fore  and  Chestnut,  1  Ired.,  378;  State  v.  Walters,  3  Ired.,  455; 


438  CRIMES  AND  PUNISHMENTS.     [Chap.  25. 

State  V.  Hooper,  5  Ired.,  201;  State  v.  Melton  and  Byrd,  Busb.,  49;  State 
V.  Hairston,  63—451 ;  Slate  v.  Reinhardt,  63—547;  State  v.  Ross,  76—242; 
State  V.  Kennedy,  76—251. 

Sec.  1085.  Marriages,    nnlawful   for  register    of  deeds, 
clergyman  and  justice  of  the  peace  to  consent  to  the 
marriage  of  a  negro  to  a  white  person.    K.  C.  c.  34  s. 
80.    1830,  c.  4.  s.  2, 

If  any  register  of  deeds  shall  knowingly  issue  any 
Uceuse  for  marriage  between  any  person  of  color  and  a 
white  person;  or  if  any  clergyman,  minister  of  the  gos- 
pel or  justice  of  the  peace  shall  knowingly  marry  any 
such  person  of  color  to  a  white  person,  the  person  so 
offending  shall  be  guilty  of  a  misdemeanor. 

Sec.  1086.  Mills,  owners  of,  to  keep  up  bridges  over 
ditches,  drains  and  canals.  R.  C,  c.  34.  s.  40.  181 Q 
c.  941,s.  3.  * 

Every  owner  of  a  water-mill,  situated  on  any  public 
road,  and  also  every  person  whose  duty  it  is  to  keep  up 
and  repair  bridges  built  across  any  ditch,  drain,  or  canal 
m  the  chapter  entitled  "Roads,  Ferries  and  Bridges  " 
who  shall  refuse  or  neglect  to  keep  up  and  repair,  or  who 
shall  suffer  to  remain  out  of  repair  for  the  space  of  ten 
days,  any  bridge  which  by  law  he  may  be  required  to 
keep  up  and  repair,  shall  be  guilty  of  a  misdemeanor. 
State  V.  Yarrell,  12  lied.,  180. 

Sec.  1087.  Mills,  the  destruction  or  obstruction  of  dams, 
canals  or  water  channels,  connected  with  a  mill,  fac^ 
tory  or  machine  works,  indictable.    1866,  c.  48. 

Any  person  who  shall  cut  away,  destroy,  or  otherwise  in- 
jure any  dam,  or  part  thereof,  or  shall  obstruct  or  damage 
any  race,  canal,  or  water  channel  erected,  opened,  used 
or  constructed,  for  the  purpose  of  furnishing  water  for 
the  operations  of  any  mill,  factory  or  machine  works  or 
for  the  escape  of  water  therefrom,  shall  be  liable  to'  be 
indicted  in  the  county  in  which  the  offence  shall  have 
been  committed;  and  upon  conviction  shall  be  fined  or 
imprisoned,  or  both,  at  the  discretion  of  the  court,  and 
shall  also  be  hable  to  an  action  in  said  court  for  damages 
by  the  person  or  company  thus  injured.  ' 

State  V.  Tomlinson,  77—528. 

Sec.  1088.  Monuments  and  tombstones,  unlawftil  to  de- 
face or  remove.     R.  C,  c.  34,  s.  102.      1840,  c.  6. 

If  any  person  shall,  unlawfully  and  on  purpose,  re- 
move from  its  place  any  monument  of  marble,  stone,  brass, 


Chap.  25.]    CRIMES  AND  PUNISHMENTS.  439 

wood  or  other  material,  erected  for  the  purpose  of  desig- 
nating the  spot  where  any  dead  body  is  interred,  or  tor 
the  purpose  of  preserving  and  perpetuating  the  m^^mory, 
name,  fame,  birth,  age  or  death  of  any  person,  whether 
situated  in  or  out  of  the  common  burying  ground,  or 
shall  unlawfully  or  on  purpose  break  or  deface  such  mon- 
ument, or  alter  the  letters,  marks  or  inscription  thereot, 
he  shall  be  guilty  of  a  misdemeanor. 

Sec.  1089.  Mortgaged  property,  unlawful  *«   ^'spose  of; 
sufficiency  of  indictment  and  proof.    1873-4:,  c.  rfi. 
1874-'5,  c.  315.    1883,  c.  61. 
If  any  person,   after  executing  a  chattel  mortgage, 
deed  in  trust  or  other  lien  for  a  lawful  purpose  shall, 
after  the  execution  thereof,  make  any  disposition  ot  any 
personal  property  embraced  in  l^^h  mortgage    deed  m 
trust  or  lien,  with  intent  to  hmder,  delay  or  defeat  the 
riehts  of  any  person  to  whom  or  for  whose  benefit  such 
deed  was  made,  every  person  so  offending  and  every  per- 
son with  a  knowelege  of  the  hen  buying  the  property 
embraced  in  any  such  deed  or  lien,  and  every  person  as- 
sisting, aiding  or  abetting  the  unlawful  disposition  of 
such  property,  with  intent  to  hinder,  delay  or  defeat  the 
rights  of  any  person  to  whom  or  for  whose  benefit  any 
such  deed  or  li^n  was  made,  shall  be  guilty  of  a  misde- 
meanor, and  punished  by  fine  or  imprisonment,  or  both, 
in  the  discretion  of  the  court.  .. 

In  all  indictments  for  violations  of  the  said  provisions  ot 
this  section,  it  shall  not  be  necessary  to  allege  ot  prove 
the  person  to  whom  any  sale  or  disposition  ot  said  prop- 
erty was  made,  but  proof  of  the  possession  of  the  prop- 
erty embraced  in  such  chattel  mortgage,  deed  in  trust  or 
lien    by  the  grantor  thereof,  after  the  execution  of  said 
chattel  mortgage,  deed  in  trust  or  lien,  and  while  it  is  m 
force    and  further  proof  of  the  fact  that  the  sheriff  or 
other  officer  charged  with  the  execution  of  said  process 
cannot  after  due  diligence  find  said  property  under  pro- 
cess directed  to  him  for  its  seizure,  for  the  satisfaction  ot 
such  chattel  mortgage,  deed  in  trust  or  hen,  or  that  the 
mortgagee  demanded  the  possession  thereof  of  the  moit- 
eagor  for  the  purpose  of  sale  to  foreclose  satd  mortgage, 
deli  in  trust  or  lien,  after  the  right  to  such  foreclosure 
had  accrued,  and  that  the  mortgagor  failed  to  produce 
deliver  or  surrender  the  same  to  the  mortgagee  tor  that 
purpose,  shall  hQ  prima  facie  proof  of  the  fact  ot  a  dis- 
position or  sale  of  said  property,  by  said  P'antor,  with 
the  intent  to  huider,  delay  or  defeat  the  rights  otthe  per- 


440  CRIMES  AND  PUNISHMENTS.     [Chap.  25. 

was  mada''"'  ^^'^  ''^''"'^  mortgage,  deed  in  trust  or  lien 

^^Statc  V.  Pickins,  79-652;  State  v.  Burns,  80-376:  State  v,  Jones.  83- 

*^*';..'?"r  ^T^"^  '■''*""^  ***  discharge  their  duties,  may 
be  indicted  and  removed  from  office.    R.  C.,  c.  34,  s. 

If  any  clerk,  sheriff,  justice  of  the  peace,  or  any  other 
officer,  who  is  required,  in  entering  upon  his  office  to 
take  an  oath  of  office,  shall  wilfully  oniit,  negector  re 
fuse  to  discharge  any  of  the  duties  of  his  office,  for  de- 
frndSffl'*'  'i'"^"*  elsewhere  provided  that  he  shall 
be  indicted  the  clerk  or  other  officer  so  offending  shaU 
be  guilty  of  a  misdemeanor.  And  if  it  shall  be  proved 
that  any  such  officer  after  his  qualification,  shall  have 
violated  his  said  oath,  and  willingly  and  coi'ruptly  W 
done  anything  contrary  to  the  true  intent  and  meanhil 
thereof,  sucji  oificer  shall  be  guilty  of  misbehaviour  f 
office,  and  shall  be  punished  by  removal  therefrom  under 
the  sentence  of  the  court  as  a  part  of  the  punishment  for 
the  offence;  and  shall  also  be  fined  and  imprisoned,  in 
the  discretion  of  the  com-t.  ' 

Mitchell  y.  Ward.  6  Jon.  Eq.,  69;  Fentress  v.  Brown.  Phil.,  873-  Cain  v 
Haywood  66-1;  State  y.  Powers,  75-281;  State  v.  Furcuson  '76-197- 
sHfil"  ^'=f°"'J7-505;  S'«t«  ^-  HawUins,  77-494;  Sllue  y.  Norman,' 
8«J— 688;  btate  y.  Snuggs,  85—541;  McKee  v.  Wilson,  87—300. 

Sec.  1091.  Peddling  without  license.    R.  C,  c.  34,  s.  44. 

If  any  person  shall  unlawfully  hawk  or  peddle  anv 
goods,  wares  or  merchandise,  or  shall  fail,  upon  the  an 
phcation  of  the  sheriff  or  his  deputy,  or 'an?  fus  ice  ?f 
the  peace,  to  show  his  license  as  required  by  law  he 
shaU  be  guilty  ol  a  misdemeanor.  j         ,  lio 

Sec^  1092.  P|^«ry^  its  punishment.    R.  C,  c.  34,  s.  49. 

If  any  person  shall  wilfully  and  corruptly  commit  ner 
SeTi"'  "''^  ";  affirmation,  in  any  suitf  con"  we??y 
mattei  or  cause  depending  m  any  of  the  courts  of  the 
state,  or  in  any  deposition  or  affidavit  taken  pursuant  to 
law,  or  m  any  oath  or  affirmation  duly  administered  of  or 
concerning  any  matter  or  thing,  whereof  such  person  is 
lawfully  required  to  be  sworn  Ir  affirmed,  eveiy  pe.son 
80  offending  shall  be  guilty  of  a  misdemeanor,  and  fined 
not  exceeding  one  thousand  doUars,  and  imprisoned  in 


Chap.  25  ]    CRIMES  AND  PUNISHMENTS.  441 

the  county  jail  or  penitentiary,  not  less  than  four  months 
nor  more  than  ten  years. 

State  V.  Alexander,  4  HawUs,  183;  State  v.  Hoyle,  6Ired.,  1;  State  v. 
Ledford,  6  lied.,  5;  State  v.  Groves,  Busb.,  403;  State  v.  Knox,  Phil.,  313; 
State  V.  Davis,  84—787;  State  v.  Mace,  86—688. 

Sec.  1093.  Perjury,  subornation  of.    K.  C,  c.  34,  s.  50. 
1791,  C.338,  s.  2. 

If  anv  person  shall,  by  any  means,  procure  another 
person  to  commit  such  wilful  and  corrupt  perjury  as  is 
mentioned  in  the  preceding  section,  the  person  so  offend- 
ing shall  be  punished  in  hke  manner  as  the  person  com- 
mitting the  perjury. 

Sec.  1094.  Poison,  unlawful  to  put  in  streams,  for  purpose 
of  catching,  killing  or  driving  away  fisli.     1883,  c.  290. 

It  shall  be  unlawful  for  any  person  to  put  any  poison- 
ous substance  for  the  purpose  of  catching,  killing  or 
driving  off  any  fish  in  any  of  the  waters  of  a  creek  or 
river  and  any  person  violating  this  section  shall  be  guilty 
of  a  misdemeanor. 

Sec.  1095.  Political  societies,  secret,  prohibited.     1870- 
'71,  c.  133.    1868-'9,  c.  267.    1871-'2,c.  143. 

If  any  person,  for  the  purpose  of  compassing  or  further- 
ing any  pohtical  object,  or  aiding  the  success  of  any 
political  party  or  organization,  or  for  resistmg  the  laws, 
shall  join  or  in  any  way  connect  or'unite  himself  with 
any  oath-bound  secret  pohtical  or  military  organization, 
society  or  association  of  whatsoever  name  or  character, 
or  shall  form  or  organize,  or  combine  and  agree 
with  any  other  person  or  persons  to  form  or  or- 
ganize any  such  organization,  or  as  a  member  of  any 
secret  political  or  military  party  or  organization  shall 
use,  or  agree  to  use,  any  certain  signs  or  grips  or 
passwords,  or  any  disguise  of  the  person  or  voice, 
or  aLy  disguise  whatsoever  for  the  advancement  of  its 
object,  and  shall  take  or  administer  any  extra-judicial 
oath,  or  any  secret  solemn  pledge,  or  any  like  secret 
means,  or  if  any  two  or  more  persons  for  the  purpose  of 
compassing  or  furthering  any  political  object,  or  aiding 
the  success  of  any  political  party  or  organization,  or  for 
circumventing  the  laws,  shall  secretly  assemble,  combine 
or  agree  together,  and  the  more  effectually  to  accomplish 
such  purposes,  or  any  of  them,  shall  use  any  certain  signs, 
or  grips,  or  pass-words,  or  any  disguise  of  the  person  or 
voice,  or  other  disguise  whatsoever ;  or  shall  take  or 


*42  CRIMES  AND  PUNISHMENTS.     [Chap.  25. 

administer  any  extra-judicial  oath  or  other  secret  solemn 
pledge   or  if  any  persons  shall  band  together  and  assemble 
bv  vMt/o?fl''  "'  practiceany  milita.yevolutls  S^ep? 
by  virtue  of  tlje  authority  of  an  officer  recognized  by  law 
or  of  an  instructor  m  institutions  or  schools  in  which 

orif  nnv  ?.'''°'  ^'?,'"T,  ^  ^"""^ ''^  ^^6  course  of  instruction. 
or  f  any  person  shal  knowingly  permit  any  of  the  acts 
and  things  herem  forbidden  to  be  had,  done  or  performed 
on  his  premises,  or  on  any  premises  under  his  control  or 
It  any  person  being  a  member  of  any  such  secret  political 
or  military  organization,  shall  not  at  once  abandon  the 
same  and  separate  himself  entirely  therefrom,  every  per 
son  so  offending  shall  be  guilty  of  a  misdemeanor  and 
tnied  not  less  than  ten  nor  more  than  two  hundred  dol- 
couV       '™P^^s°"e<i'  or  both,  at  the  discretion  of  the 

Sec.  1096.  Punishments  for  felonies  not  specified.    R.  C« 
c.  34r,  s.  27.  ' 

Every  person  who  shall  be  convicted  of  any  felony  for 
which  no  specific  punishment  is  prescribed  by  statute 
shall  be  imprisoned  in  the  county  jail  or  penitentiary  not 
exceedm-  two  yeai-s,  and  be  fined,  in  the  discretion  of  the 
court  or  if  the  offence  be  infamous,  the  person  offending 
shall  be  imprisoned  in  the  county  jail  or  penitentiarv,  not 
finid     "^  months  nor  more  than  ten  years,  and  be 

State  y.  Bailey,  65-436;  State  v.  Brite,  7a-36j  State  v.  Driver,  78-423- 

Sec.  1097.  Punishments  for  misdemeanors  not  specified 
R.  C,  c.  34,  s.  120. 

Offences  made  misdemeanors  by  statute,  where  a  spe- 
cific punishment  is  not  prescribed,  sliall  be  punished  as 
misdemeanors  at  common  law;  but  if  the  offence  be  in- 
tomous,  or  done  in  secrecy  and  malice,  or  with  deceit  and 
intent  to  defraud,  the  offender  shall  be  punished  by  im- 
prisonment m  the  county  jail  or  penitentiary,  not  less 
than  four  months  nor  more  than  ten  years,  and  be  fined 

In  re.  Schcnck,  74—607;    Plate  v.  McNeill,  75-1,5;  State  v.  Driver  78-1 
423;  State  v.  Jackson,  83—565;  State  v.  Norman,  83—687. 


Sec.  1098.  Railroads,  plank  roads,  turnpikes  and  canals 
maliciously  destroying,  obstructing  and  injuring,  penl 
alty  when  death  ensues,  and  when  not.  R,  C.  c  34 
ss.  99,  100.    1838,  f.  ,J8.     1879,  c.  265,  s,  3.       '    '       ' 

If  any  person  siiall  wilfully  and  maliciously  put  or  place 
any  matter  or  thing  upon,  over,  or  near  any  railroad  track; 


Chap.  25.]    CRIMES  AND  PUNISHMENTS.  443 

or  shall  wilfully  and  maliciously  destroy,  injure,  or  re- 
move the  road-bed,  or  any  part  thereof   or  any  rail,  sill, 
or  other  part  of  the  fixture  appurtenant  to  or  constituting 
or  supporting  any  portion  of  the  track  of  such  railroad  ; 
or  shall  wiieSlly  and  maliciously  do  any  other  thing  with 
intent  to  obstruct,  stop,  hinder,  delay  or  displace  the  cars 
traveling  on  such  road,  or  to  stop,  hinder  or  delay  the  pas- 
sengers or  others  passing  over  the  same;  or  shall  wiltully 
and  maliciously  iniure  the  road-bed  or  the  fixtures  afoie- 
said,  or  any  part  thereof,  with  any  other  mtent  whatso- 
ever, such  person  so  offending  shall  be  guilty  of  a  misde- 
meanor, and  fined  not  exceeding  one  thousand  dollars  nor 
less  than  two  hundred  dollars,  and  be  imprisoned  in  the 
penitentiary  or  county  jail,  not  less  than  four  months  nor 
more  than  ten  years,  and  shall  be  committed  to  jail  till 
he  find  surety  for  his  good  behavior,  for  a  space  of  time 
not  less  than  three  nor  more  than  seven  years. _   And  it  it 
shall  happen  that  by  reason  of  the  commission  of  the 
offences  aforesaid,  or  any  of  them,  any  engine  or  car  shall 
be  displaced  from  the  track,  or  shall  be  stopped,  hindered 
or  delayed,  so  that  any  one  thereby  be  instantly  killed  or 
60  wounded  or  hurt  as  to  die  therefrom  in  twelve  calendar 
months  thereafter,  or  shall  thereby  be  maimed  or  be  dis- 
abled in  the  use  of  any  Umb  or  member,  then,  and  in  every 
such  case,  the  party  so  offending,  his  counselors  Riders 
and  abettors,  on  conviction,  shall  suffer  death,  if  the  per- 
sons were  killed,  and  shall  be  imprisoned  in  the  peniten- 
tiary not  less  than  five  nor  more  than  sixty  years,  it  tlie 
persons  were  maimed  or  disabled.     And  if  any  person 
shall  maliciously  destroy  or  injure  any  plank  road,  turn- 
pike or  canal,  or  any  appurtenance  or  fixture  belonging 
thereto,  or  used  therewith,  or  snail  maUciously  destroy  or 
iniure  any  lock,  dam  or  sluice,  the  same  being  a  part  ot 
any  work  erected  or  made  for  the  purposes  of  navigation, 
or  improving  the  navigation  of  any  water,  the  person  so 
offending  shall  be  guilty  of  a  misdemeanor,  and  shall  suf- 
fer the  like  punishment  as  in  this  section  provided  tor 
maliciously  injuring  a  railroad. 

Sec.  1099.  Railroads,  wilful   injury  to,  without   malice. 
K.  C.,c.  34,  s.  101.  -.r,      i. 

If  any  person,  unlawfully  and  on  purpose,  but  without 
malice  shall  commit  any  of  the  offences  mentioned  in 
the  preceding  section,  he  shall  be  guilty  of  a  misdemeanor. 
And  if  it  shall  happen  that  by  reason  of  the  conimissioa 
of  any  such  offence  any  person  shall  be  instantly  ki.lea, 
or  so  wounded  or  hurt  as  to  die  therefrom  in  twelve  calen- 


444  CRIMES  AND  PUNISHMENTS.     [Chap.  25 

dar  months  thereafter,  or  shall  thereby  be  maimed  or  dis- 
abled in  the  use  of  any  limb  or  member,  then,  and  in  every 
such  case,  the  party  so  offending,  his  counselore,  aiders 
and  abettors,  shall  be  imprisoned  not  less  than  twelve 
months,  and  fined,  at  the  discretion  of  the  court. 

Sec.  IIOO.    Railroads,  shooting  at  or  throwing  into  cars, 
locomotives  or  trains,  punishment.     187G-'7,  c.  4. 

If  any  person  shall  cast,  or  throw,  or  shoot,  any  stone 
rock,  bullet,  shot,  pellet,  or  other  missile,  at,  against  or 
mto,  any  railroad  car,  locomotive  or  train,  while  the  said 
car  or  locomotive  shall  be  in  progress  from  one  station  to 
another,  or  while  the  said  car,  locomotive  or  tiain  shall 
be  stopped  for  any  purpose,  with  intent  to  injure  said  car 
or  locomotive,  or  any  person  therein  or  thereon,  the  per- 
son so  offending  shall  be  guilty  of  a  misdemeanor,  and 
punished  by  fine  or  imprisonment  in  the  county  jail  or 
penitentiary,  at  the  discretion  of  the  court. 

State  V.  Hinson,  82—597;  State  v.  Boyd,  86—634. 

See.  IIOI.    Rape  punished  with  death.    R.  C,  c.  34  s  6 
18  Eliz.,  c.  7.    1868-'9,  c.  167,  s.  2. 

Every  person,  who  is  convicted  of  ravishing  and  car- 
nally knowing  any  female  of  the  age  of  ten  years  or 
more  by  force  and  against  her  will,  or  who  is  convicted 
of  unlawfully  and  carnally  knowing  and  abusing  any 
female  child  under  the  age  of  ten  years,  shall  suffer 
death. 

State  V.  Farmer,  4  Ired.,  224;  St.ite  v.  Jefferson,  6  Ired.,  305-  Slate  v 
Clark,  7  Jon.,  167;  Stale  v.  Peter,  8  Jon.,  19;  State  v.  Gray,  8  Jon.,  170- 
State  V.  Sam,  Winst.,  300:  State  v.  Hodges,  PliiL,  231;  Slate  v.  Smith' 
Phil.,  303;  State  v.  Storkey,  63— 7;  Stale'v.  Hargrave,  63— 466;  State  v! 
King,  69—419;  State  v.  Brooks,  76—1;  State  v.  Johnston,  76-209-  State  v 
Dancy,  88—608. 

Sec.  1102.  Rape,  assault  with  intent  to  commit,  a  mis- 
demeanor. 1868-'9,  c.  1«7,  s.  3.  R.  C,  c.  107,  s.  44. 
1823,  c.  1229. 

Every  person  convicted  of  an  assault  with  intent  to 
commit  a  rape  upon  the  body  of  anv  female,  shall  be  im- 
prisoned in  the  penitentiary  not  less  than  five  nor  more 
than  fifteen  years. 

State  V.  Jim,  1  Dev.,  143;  State  v.  Martin,  3  Dev.,  329;  State  v.  Jesse 
3  D.  &  B.,  397;  State  v.  Boon,  13  Ired.,  244;  Slate  v.  Tom,  2  Jon  414'- 
State  V.  Ellick,  7  Jon.,  68;  State  v.  Peter,  8  .Jon.,  19;  St.ile  v.  MrDanid' 
Winst.,  249;  State  v.  Sam,  Wiust.,  300;  State  v.  Scott,  73-461;  State  y. 
Keely,  74—425;  State   v.  Johnston,    76—209;    State   v.   Perkins,"   82—681; 


Chap.  25.]    CRIMES  AND  PUNISHMENTS.  445 

State  V.  Jones,  83-605;  State  v.  Dancy,  83-608;  State  v.  Massey,   86-658; 
overules  State  v.  Neely,  74—425;  State  v.  Daniel,  87-507. 

Sec  1 1 03.  Rape,  carnal  knowledge  of  married  woman  by 
fraud  in  personating  her  husband  declared  to  be  felony. 
1881,  c.  89,  s.  1. 

Every  person  who  shall  have  carnal  knowledge  of  any 
married  woman  by  fraud  in  personating  her  husband, 
shall  be  guilty  of  a  felony,  and  punished  by  nnpnson- 
meut  in  the  penitentiary  at  hard  labor  not  less  than  ten 
nor  more  than  twenty  years. 

State  V.  Brooks,  76—1. 

Sec.  1104.  Rape,  assault  with  intent  to  have  carnal 
knowledge  of  married  woman  by  fraud  in  personating 
her  husband,  how  punished.     1881,  c.  89,  s.  2. 

Every  person  convicted  of  an  assault  upon  any  married 
woman,  with  intent  to  have  knowledge  uf  her  by  fraud 
in  personating  her  husband,  shall  be  punished  by  im- 
prisonment in  the  penitentiary  at  hard  labor  not  less  than 
live  nor  more  than  fifteen  years. 

Sec,  1105.  Rape  and  buggery,  what  proof  sufficient  in. 
1860-'61,  c.  30. 

It  shall  not  be  necessary  upon  the  trial  of  any  indict- 
ment for  the  offences  of  rape,  carnally  knowing  and  abus- 
ing any  female  child  under  ten  years  of  age,  and  bug- 
eery  to  prove  the  actual  emission  of  seed  in  order  to 
constitute  the  offence,  but  the  offence  shall  be  completed 
upon  proof  of  penetration  only. 

State  V.  Gray,  8  Jon.,  170;  State  v.  Hod,a,cs,  Phil.,  231;  State  v.  Storkey, 
63—7;  State  v.  Hargrave,  65—466;  State  v.  Johnston,  76—209. 

Sec  1106.  Rebellion  or  insurrection  against  the  state,  a 
iiigh  crime.  1868,  c.  60,  s.  2.  1861,  c.  IS.  1866,  c. 
54.     Const.,  Art.  IV,  s.  5. 

If  any  person  shall  incite,  set  on  foot,  assist  or  engage 
in  a  rebellion  or  insurrection  against  the  authority  of  the 
state  of  North  Carolina  or  the  laws  thereof,  or  shall  give 
aid  or  comfort  thereto,  every  person  so  offendmg  in  any 
of  the  ways  aforesaid,  shall  be  guilty  of  a  high  crime, 
and  punished  by  imprisonment  at  hard  labor  for  not 
more  than  fifteen  years,  and  be  fined  not  more  than  ten 
thousand  dollars. 


446  CEIMES  AND  PUNISHMENTS.     [Chap.  25. 

Sec.  1107.  Rebellion  or  insurrection,  conspiracy  to  de- 
stroy the  government  of  the  state  by.  1SG8,  c.  OO,  s.  1. 

If  two  or  moie  persons  shall  conspire  together  to  over- 
throw or  put  down,  or  to  destroy  by  force,  the  govern- 
ment of  North  Carolina,  or  to  levy  war  against  the  gov- 
ernment of  this  state,  or  to  oppose  by  force  the  authority 
of  said  government,  or  by  force,  or  by  threats,  to  in- 
tmiidate,  or  to  prevent,  hinder  or  delay  the  execution  of 
any  law  of  the  state,  or  by  force  or  fraud  to  seize  or 
take  possession  of  any  fire  arms  or  property  of  the  state 
aforesaid,  against  the  will  or  contrary  to  the  authority 
of  said  state,  every  person  so  offending  in  any  of  the 
ways  aforesaid,  shall  be  guilty  of  a  high  crime,  and  im- 
prisoned not  more  than  ten  years,  and  be  fined  not  ex- 
ceeding five  thousand  dollars. 

State  V.  Jackson,  82—565.  ' 

Sec.  1108.  Seamen,  enticingfrom  vessels,  a  misdemeanor. 
1879,  c.  219,  s.  1.  1881,  c  356,  s.  1. 

Any  person  who  shall  induce  any  seaman,  in  the  em- 
ployment of  any  domestic  or  foreign  vessel,  in  any  of 
the  ports  of  North  Carohna,  to  leave  any  such  vessel 
before  his  term  of  service  shall  have  expired,  shall  be 
guilty  of  a  misdemeanor,  and  fined  not  exceeding  fifty 
dollars,  or  imprisoned  not  exceeding  thirty  days. 

Sec.  1109.  Seamen,  unlawful  to  secrete  or  harbor  those 
who  have  deserted.  1879,  c.  219,  s.  2.  1881.  c.  25G 
8.  2.  * 

Any  person  who  shall  secrete  or  harbor  any  such  sea- 
man, who  has  deserted  from  any  domestic  or  foreign 
vessel,  knowing  that  such  seaman  has  deserted,  shall  be 
guilty  of  a  misdemeanor,  and  be  fined  not  exceeding 
fifty  dollai-s  or  imprisoned  not  exceeding  thirty  days; 
and  if  such  seaman  be  found  concealed  or  secreted  by 
any  persou  on  his  premises,  such  concealment  and  secre- 
tion shall  be  deemed  prima  facie  evidence  that  such 
person  knew  that  such  seaman  was  a  deserter. 

Sec.  1110.  Seamen,  justices  of  the  peace  authorized  to 
■issue  search  warrants  for  those  who  have  deserted. 
1881,  c.  25G,  s.  3. 

If  any  credible  witness  shall  prove,  upon  oath  before 
any  justice  of  the  peace,  that  any  pereon  has  concealed 
on  hia  premises  any  seaman  who  has  deserted  from  a:iy 
such  domestic  or  foreign  vessel,  it  shall  be  lawful  for  such 
justice  to  grant  a  search  warrant  to  be  executed  within 


Chap.  25.]    CRIMES  AND  PUNISHMENTS.  Ul 

the  limits  of  his  county  to  any  proper  officer  authorizing 
him  to  search  for  such  seaman,  and  to  arrest  the  person 
on  whose  premises  he  may  be  found,  and  the  person  on 
whose  premises  such  seaman  shall  be  found  shall  be 
adiudo-ed  to  pay  the  costs  of  such  search  warrant,  it  on 
examination  it  shall  appear  that  such  seaman  was  secreted 
or  concealed  by  such  person;  otherwise  the  costs  shaU  be 
paid  by  the  party  making  the  complaint. 

Sec  1111.  Seamen,  either  party  may  appeal,  justice  to 
reduce  to  writing  testimony  of  aU  material  witnesses 
and  return  to  appellate  court;  fees  of  justice.  1881, 
C.35G,  ss.  4,  5. 

In  all  cases  arising  under  the  three  preceding  sections, 
if  any  appeal  is  prayed  by  either  party  at  the  time  of  the 
trial,  it  shall  be  granted;  but  no  appeal  shaU  be  granted 
by  any  iustice  at  any  time  after  the  final  hearing  of  the 
case;  m  case  an  appeal  is  prayed  at  the  trial,  it  shall  be 
the  duty  of  the  justice  to  immediately  proceed  to  reduce 
the  testimony  of  any  witness  whose  testimony  is  material 
to  writing  (if  such  witness  shall  be  master,  otficer,  or  sea- 
man on  board  of  any  vessel),  in  the  presenceof  the  adverse 
party,  who  may  cross-question  such  witness,  which  testi- 
mony shaU  be  subscribed  by  such  witness  and  returned  by 
the  iustice  with  the  papers  in  the  case;  and  on  the  hear- 
ing; in  the  appeUate  court,  the  testimony  so  taken  and 
reduced  to  writing  by  such  justice  shall  be  read,  heaid 
and  accepted  as  the  true  and  lawful  testimony  of  such 
witness,  as  if  such  person  were  in  person  present  to  g.ve 
evidence.  For  reducing  such  testimony  to  wntmg  the 
justice  shall  receive  the  same  fees  as  are  allowed  lor 
taking  depositions. 

Sec.  1112.  Sheriffs,  constables  or  other  officers  failing  to 
execute  process,  making  a  ftilse  return  thereon,  or  re- 
fusing to  discharge  any  other  duties,  indictable.  K.  C, 
c.  34  s.  118.     1818,  c.  980,8.  3.     1827,  c.  20,  s.  4. 

Any  sheriff,  constable,  or  other  officer,  whether  state 
or  municipal,  refusing  or  neglecting  to  return  any  p:-ecept, 
notice,  or  process,  to  him  tendered  or  deliveied,  which  it 
is  his  duty  to  execute,  or  making  a  false  return  thereoQ; 
or  any  person  who  shall  presume  to  act  as  any  such 
officer,  not  being  by  law  autliorized  so  to  do,  shall  foifeit 
and  pay  to  any  one  who  will  sue  for  the  same  one  hundred 
dollars,  and  shall  moreover  be  guilty  of  a  misdemeanor. 

Fentriss  v.  Brown,  Phil.,  3T3. 


448  CRIMES  AND  PUNISECMENTS.     [Chap.  25. 

Sec.  1113.  Slander  of  woman  by  charge  of  incontinency 
penalty.    1879,  c.  156. 

If  auy  person  shall  attempt,  in  a  wanton  and  malicious 
manner,  to  destroy  the  reputation  of  an  innocent  woman 
by  words  written  or  spoken,  which  amount  to  a  charge 
oi  incontinency,  every  person  so  offending  shall  be  guilty 
of  a  misdemeanor,  and  fined  or  imprisoned  in  the  dis- 
cretion of  the  court. 

State  V.  McDaniel,  84-803;  State  v.  Aldrich,  86-080:  Sowers  v  S.)wer<. 
87—303. 

Sec.  1114.  Spriug-s,  wells  and  cisterns,  wilful   injuring, 
penalty.    K.  C,  c.  34,  s.  97.     1850,  c.  104. 

If  any  person  shall  wilfully  put  into  the  well,  spring  or 
cistern  of  water  of  any  other  person,  any  substance  or 
thing,  whereby  such  well,  spring  or  cistern  may  be  en- 
damaged,  or  the  water  thereof  be  made  less  wholesome 
or  fit  tor  use,  he  shaU  be  guilty  of  a  misdemeanor. 

Sec.    1116.    Sunday,    hunting    on,    prohibited;    penalty. 
186S-'9,  c.  18,  s.  1.  ^ 

If  any  person  whomsoever  shall  be  known  to  hunt  on 
the  Lord's  day,  commonly  called  Sunday,  with  a  dog  or 
dogs,  or  shall  be  found  off  of  his  own  lands  on  Sunday, 
having  a  shot  gun,  rifle  or  pistol,  every  person  so  offend- 
ing shall  be  subject  to  indictment;  and  shall  pay  a  fine 
not  to  exceed  fifty  dollars,  at  the  discretion  of  the  court, 
two  thirds  of  such  fine  to  enure  to  the  benefit  of  the  free 
public  schools  in  the  county  of  which  such  convict  is  a 
resident,  the  remainder  to  the  informant. 

fetatev.  Brown,  3Mur.,  324;  State  v.  Drake,  64^-589 ;  State  v.  Howard, 
67—24;  State  v.  Rickells,  74—187:  State  v.  Wilson,  84—777. 

Sec.  1116.  Sunday,  fishing  on  with  seines  or  nets  pro- 
hibited; punishment.    1883,  c.  338. 

It  shall  be  unlawful  for  any  person  to  fish  on  Sunday 
with  a  seine,  drag  net  or  other  kind  of  net,  except  such 
as  are  fastened  to  stakes;  and  any  person  violating  this 
section  shall  be  guilty  of  a  misdemeanor,  and  fined  not 
less  than  two  hundred  nor  more  than  five  hundred  dol- 
lars, or  imprisoned  not  more  than  twelve  mouths. 

Sec.  1117.  Sunday,  sale  of  intoxicating  liquors  on,  amis- 
demeanor.     1876-'7,  c.  38. 

If  any  person  shall  sell  spirituous,  or  malt,  or  other  in- 
toxicating liquors  on  Sunday,  except  on  the  prescription 


Chap.  25.]    CRIMES  AND  PUNISHMENTS.  449 

of  a  physician,  and  then  only  for  medical  purposes,  the 
person  so  offending  shall  be  guilty  of  a  misdemeanor, 
and  punished  by  fine,  or  imprisonment,  or  both,  in  the 
discretion  of  the  court. 

State  V.  Wray,  73—283;  State  v.  Packer,  80—439;  State  v.  Wool,  86—708. 

Sec.  1118.  Telegrapher  telephone  poles  or  wires,  injury 
to,  a  misdemeanor.    1881,  c.  4.    1883,  c  103. 

Any  person  who  shall  wilfully  injure,  or  destroy,  or 
pulldown  any  telegraph  or  telephone  pole,  wire,  insulator, 
or  any  other  fixture  or  apparatus  attached  to  a  telegraph 
or  telephone  hue,  shall  be  guilty  of  a  misdemeanor,  and 
may  be  fined  and  imprisoned,  at  the  discretion  of  the 
court. 

Sec.  1119.  Treasurer  of  the  state,  fraudulent  entries  and 
statements  by,  a  misdemeanor.    R.  C,  c.  34,  s.  68. 

If  the  treasurer  of  the  state  shall  wittingly  or  falsely 
make,  or  cause  to  be  made,  any  false  entry  or  charge  in 
any  book  kept  by  him  as  treasurer,  or  shall  wittingly 
or  falsely  form,  or  procure  to  be  formed,  any  state- 
ment of  the  treasury,  to  be  by  him  laid  before  the  gov- 
ernor, the  general  assembly,  or  any  committee  thereof,  or 
to  be  by  him  used  in  any  settlement  which  he  is  required 
to  make  with  the  auditor,  with  intent,  in  any  of  said  in- 
stances, to  defraud  the  state  or  any  person,  such  treasurer 
shall  be  guilty  of  a  misdemeanor,  and  fined  at  the  dis- 
cretion of  the  court,  not  exceeding  three  thousand  dollars, 
and  imprisoned  not  exceeding  three  years. 

Sec.  1120.  Trespass  on  land  without  a  license,  after  being 
forbidden,  a  misdemeanor.    1866,  c.  60. 

If  any  person,  after  being  forbidden  to  do  so,  shall  go 
or  enter  upon  the  lands  of  another,  without  a  license 
therefor,  he  shall  be  guilty  of  a  misdemeanor,  and  on 
conviction,  shall  be  fined  not  exceeding  fifty  dollars,  or 
imprisoned  not  more  than  thirty  days:  Provided,  that  if 
any  person  shall  make  a  written  affidavit  before  a  justice 
of  the  peace  of  the  county,  that  any  of  his  cattle  or  other 
live  stock  (which  shall  be  specially  described  and  set 
forth  in  such  affidavit)  have  strayed  away,  and  he  has 
good  reason  to  believe  that  they  are  on  the  lands  of  an- 
other person,  then  such  justice  may,  in  his  discretion, 
allow  such  person  to  enter  on  said  premises  with  one  or 
more  servants,  without  fire-arms,  in  the  day  time  (Sun- 
day excepted),  between  the  hours  of  sunrise  and  sunset, 
and  make  search  for  his  estray  for  such  limited  time  as 


450  CRIWES  AND  PUNISHMENTS.     [Chap.  25. 

to  said  justice  shaU  appear  reasonable;  but  the  only  effect 
of  such  license  shall  be  to  protect  the  persons  entering 
from  ludic  ment  therefor,  and  then  only,  provided  the 
license  shall  have  been  made  bona  fide,  and  without  any 
damage  except  such  as  were  necessary  to  conduct  the 

State  V.  Hanks,  66-612;  State  v.  Ellen,  6&-281;  State  v.  Whitehurst 
70-8o;  State  v.  Yarborough,  70-250;  State  v.  Hause,  71-518-  State  y 
Presley,  72-204;  State  v.  Bullard,  72-445;  State  v.  Batchelor  72-468- 
State  V.  Edney,  80-360;  State  v.  Crosset,  81-579;  State  y,  Bryson  81- 
59o;  State  v.  Dudley,  83—660;  State  v.  Whitaker,  85-566. 

^^%M.^^'  ^'■^''Pass  on   public  lands,  penalty  therefor. 
K.  C,  c.  34,  s.  42.     1823,  c.  1190.     1842.  c.  36,  s.  4. 

If  any  person  shall  erect  a  building  on  any  public  lands, 
before  the  same  shall  have  been  sold  or  granted  by  the 
state,  or  on  any  lands  belonging  to  the  state  board  of 
education  before  the  same  shaU  have  been  sold  and  con- 
veyed by  them,  or  cultivate,  or  remove  timber  from,  any 
of  said  lands,  such  person  shall  be  guilty  of  a  misde- 
meanor; and,  when  any  person  shall  be  in  possession  of 
aaj  part  of  said  land,  it  shall  be  the  duty  of  the  sherifif  of 
the  county  in  which  the  land  is  situated,  and  he  is  hereby 
required,  to  give  notice  in  writing  to  such  person,  com- 
manding him  to  depart  therefrom  forthwith;  and  if  the 
person  in  possession,  upon  being  so  notified,  shaU  not! 
withm  two  weeks  after  the  time  of  notice,  remove  there- 
trora  the  sheriff  is  required  to  remove  him  immediately, 
and  If  necessary,  shall  summon  the  power  of  the  county 
to  assist  him  in  so  doing.  ^ 

Sec.  1122.  Trout,  unlawful  to  catch  mountain  trout  with 
seme  at  all  times;  the  taking  by  shooting  or  otherwise 
between  the  fifteenth  day  of  October  and  the  thir- 
tie«i  day  of  December,  a  misdemeanor.    1869-'70,  c. 

It  shall  be  unlawful  to  catch  mountain  trout  by  seining 
at  aU  times.  And  there  shall  be  no  taking  of  said  fish 
by  shooting,  or  otherwise,  between  the  fifteenth  day  of 
October  and  the  thirtieth  day  of  December.  Any  person 
violating  this  section  shall  be  guilty  of  a  misdemeanor. 
One  half  of  the  fine  shaU  be  paid  over  to  the  informant, 
and  ihe  other  to  the  county  treasurer  for  the  use  of  the 
tree  pubhc  schools  therein. 

Sec.  1123.  Water  courses,  obstruction  of,  penalty.  1872- 
'3,  o.  107,  ss.  1,  2. 

If  any  person  shall  wilfully  feU  any  tree,  or  wilfully 


Chap.  26.]     CRIMINAL  PROCEEDINGS.  451 

put  any  obstraction,  except  for  the  purposes  of  utilizing 
water  as  a  motive  power,  in  any  branch,  creek,  or  other 
natural  passage  for  water,  whereby  the  natural  flow  of 
water  through  such  passage  is  lessened  or  retarded,  and 
whereby  the  navigation  of  such  stream  by  any  rait  or 
flat  may  be  impeded,  delayed  or  prevented,  the  person  so 
offending  shall  be  guilty  of  a  misdemeanor,  and  fined  not 
to  exceed  fifty  dollars,  or  imprisoned  not  to  exceed  thirty 
days.  Nothing  in  this  section  shall  prevent  the  erection 
of  fish  dams  or  hedges  which  do  not  extend  across  more 
than  two-thirds  of  the  width  of  any  stream  where 
erected,  but  if  extending  over  more  than  two-tliirds  of 
the  width  of  any  stream,  the  said  penalties  shall  attach. 

State  V.  Pool,  74—403;  State  v.  TomlinsoQ,  77—528. 


CHAPTER   TWENTY-SIX. 


OEIMINAL  PKOOEEDINGS. 


Section. 

1124.  Persons  present  at  breaches  of 
the  peace  to  arrest  offenders. 

1125.  Persons  summoned  by  officer 
must  assist  in  the  arrest. 

1126.  Peace  officers  shall  arrest 
without  -warrant  in  certain 
cases. 

1127.  Houses  may  be  broken  open 
to  prevent  a  felony  therein. 

1128.  Officers  may  break  open  doors 
to  arrest  persons  charged  with 
high  crimes. 

1129.  Persons  in  whose  presence  an 
infamous  crime  ia  conmiitted, 
may  arrest  the  oflender. 

1130.  Persons  arrested  without  war- 
rant entitled  to  have  an  im- 
mediate hearing. 

1131.  Felons  fleeing  from  justice, 
outlawed. 

1133.  Wbo  may  issue  criminal  pro- 
cess. 


Section. 

1133.  Duty  of  magistrate  on  com- 
plaint being  made  to  him 
of  the  commission  of  a 
crime. 

1134.  Duty  of  magistrate  to  issue 
his  warrant  for  the  arrest  of 
the  accused. 

1135.  Where  warrant  to  run. 

1130.  How  warrant  may  be  in- 
dorsed. 

1137.  Magistrate  not  liable  to  in- 
dictment or  action  for  im- 
properly indorsing  warrant. 

1138.  Persons  arrested  to  be  taken 
before  some  magistrate  of  the 
county  where  oflenco  was 
committed. 

1139.  Magistrate  shall  take  bail,  if 
the  offence  be  not  a  capital 
one. 

1140.  Duty  of  magistrate  granting 
bail. 


452 


CRIMINAL  PROCEEDINGS.      [Chap.  26. 


Section. 

1141.  If  bail  is  not  allowed,  or  is  not 
given,  the  accused  to  be  taken 
before  a  magistrate  of  the 
county  where  the  warrant  was 
issued. 

1143.  In  capital  cases  the  prisoner 
must  be  brought  before  a 
magistrate  of  the  county  where 
the  warrant  was  issued  or  be- 
fore some  judge  of  the  supreme 
or  superior  court.  I 

1143.  Before  what  magistrate  war- 1 
rant  to  be  returnable. 

1144.  Duly  of  the  examining  magis- 
trate. 

1145.  The  examination;  prisoners  to 
be  allowed  time  to  advise 
with  counsel  and  to  cross 
examine  witnesses  against 
them. 

1146.  Prisoner  shall  be  informed 
that  he  may  refuse  to  answer 
any  question. 

1147.  Answer  of  prisoner  shall  be 
reduced  to  writing. 

1148.  Prisoner  may  examine  wit- 
nesses and  have  the  assistance 
of  counsel. 

1149.  The  pri.soner  shall  not  be  ex- 
amined in  the  presence  of  (he 
witnesses;  witnesses  may  be 
examined  separately. 

1150.  The  testimony  of  witnesses  to 
be  reduced  to  writing. 

1151.  When  prisoner  shall  be  dis- 
charged. 

1152.  When  prisoner  shall  be  bound 
over. 

1153.  Magistrate  need  not  take  the 
examination  of  a  prisoner 
charged  with  a  misdemeanor. 

1154.  Witnesses  may  be  required  to 
give  security  for  their  appear 
ance. 

1155.  Witness  not  giving  the  security 
required  may  be  committed  to 
prison. 

1156.  When  bail  shall  be  allowed. 


Section. 

1157.  Examinations  and  recogni- 
zances to  be  certified  to  Uie 
court  by  the  committing  mag- 
istrate. 

1158.  Penalty  on  magistrate  failing 
to  make  the  required  return. 

1159.  The  magistrate  may  as.sociate 
with  himself  another. 

1160.  Who  may  bail  persons  charged 
I  ""ith  crime  but  not  imprisoned. 

1101.  Wlio  may  let  to  bail  persons 
charged  with  crime  and  in 
prison. 

1163.  When  a  prisoner  is  bailed,  the 
recognizance  taken  by  the 
officer  shall  be  filed  with  the 
clerk  of  the  court. 

1163.  What  every  commitment  shall 
state. 

1164.  To  what  jail  prisoner  shall  be 
committed. 

1165.  Fugitives  from  justice,  who 
may  arrest. 

1166.  Magistrate  to  keep  record  of 
the  proceedings  and  transmit 
copy  to  the  governor. 

1 167.  Duty  of  the  governor. 

1168.  Every  sheritT  or  jailer  shall 
surrender  the  fugitive  upon 
the  order  of  the  governor. 

11 69.  Governor  may  employ  agent  or 
offer  reward  for  apprehension 
of  fugitives  charged  with 
felony. 

1170.  Governor  may  draw  on  the 
state  treasurer  for  money  ncc- 
cessary  to  pay  expenses  of 
arresting  fugitive's  from  jus- 
tice. 

1171.  Of  search  warrants. 
1173.   Search  warrant,  its  form  and 

the  proceedings  thereon. 

1173.  Of  costs  in  proceed ing.s  before 
judges  and  magistrates. 

1174.  Persons  to  be  imprisoned  in 
county  jail;  exception  as  to 
a  sheriff. 

1175.  No  person  to  be  arrested  on  a 


Chap.  26.]     CRIMINAL  PROCEEDINGS. 


453 


Section. 

presentment,  nor  tried,  except 
on  indictment. 

1176.  Names  of  witnesses  and  grand 
jurors  to  be  indorsed  on  pre- 
sentment. 

1177.  Indictments  for  misdemeanors 
to  be  commenced  in  two 
years,  exceptions  thereto. 

1178.  Criminal  proceedings  to  issue 
and  be  returnable  at  anytime; 
proceedings  as  heretofore. 

1179.  Sberiif  to  indorse  on  process 
and  subpoenas  day  of  receipt 
and  execution. 

1180.  Sheriff  to  take  bail  in  bailable 
offences;  not  to  become  bail 
himself. 

1181.  Court  to  allow  bail  pending 
appeal. 

1183.  The  accused  allowed  counsel. 

1183.  Formal  objections  or  stay  of 
•        judgment  shall  not  quash  in- 
dictments,   informations   and 
impeachments. 

1184.  Substance  of  proceedings  to  be 
set  forth  in  indiclmcnts,  &c. 

1185.  Indictment  for  perjury;  what 
to  set  forth. 

1186.  Indictment  for  subornation  of 
perjury;  what  to  set  fori h. 

1187.  Indictment  for  second  offence; 
how  first  conviction  to  be 
stated. 

1188.  Indictment,  how  stated,  when 
ownership  of  property  is  held 
in  common. 

1189.  Indictment,  certain  defects  of, 
not  to  vitiate. 

1190.  In  indictments  for  larceny  of 
money,  treasury  notes  or  bank 
notes,  sufficient  to  describe 
such  money  or  notes,  simply 
as  money,  without  specifying 
the  kind. 

1191.  Intent  to  defraud,  what  state- 
ment and  proof  sufficient;  in 
same  indictment,  defendant 
may  be  charged  with  counts 


Section. 

for  receiving  stolen  goods  and 

with  larceny. 
1193.  Party  whose  name  is  forged  a 

competent  witness. 

1193.  Crimes  committed  on  waters 
dividing  counties,  wliere  tried. 

1194.  Improper  venue,  to  be  taken 
advantage  of  by  plea  in  abate- 
ment; on  issue  joined,  wliat 
judgment  rendered  in  misde- 
meanors, what  in  felonies. 

1195.  In  indictment  for  libel,  de- 
fendant may  give  the  truth  in 
evidence. 

1196.  In  cases  where  an  assault  fol- 
lowed by  death  in  another 
county,  indictment  to  be  found 
in  county  where  assault  was 
made. 

1197.  Assault  in  this  state  and  death 
out  of  it,  trial  to  be  had  in 
this  stale. 

1198.  Plea  of  "not  guilty"  entered 
for  defendant,  who  stands 
mute, 

1199.  In  capital  cases,  defendants 
may  challenge  twcnty-tliree 
jurors,  in  other  cases  four; 
.allowed  aid  of  counsel. 

1300.  In  capital  cases  state  may  chal- 
lenge four  jurors,  in  others 
two. 

1301.  On  conviction  for  robbing  or 
stealing,  the  person  robbed  is 
entitled  to  the  restitution  of 
his  property. 

1203.  New  trial  to  defendants. 

1303.  Superior  and  inferior  curls  to- 
set  a  day  for  the  trial  of 
crimes;  witnesses  not  to  attend 
until  such  day. 

1304.  Pay  of  witnesses  in  state  case>^j 
court  to  direct  the  prosecutor 
to  pay  costs  in  ceriain  cnses. 

1305.  Judges  may  lessen  or  remit 
recognizances  at  any  time. 

1306.  Clerk  to  refund  remitud  for. 
feitures  paid  into  office. 


454 


CRIMINAL  PEOCEEDINGS.      [Chap.  26. 


Section. 

1207.  County  treasurer  to  refund 
•when  paid  to  him. 

1208.  Execution  not  to  issue  until 
the  issuing  of  the  notice. 

1209.  Joint  notice  to  issue  on  for- 
I  feited  recognizances. 

1210.  How  notices  executed. 

1211.  Convicte(f ■  person  must  pay 
the  costs. 

1212.  Penalties  not  specially  given 
may  be  recovered  by  any  per- 
son who  will  sue  for  the 
same. 

1213.  Suits  on  penalties,  unless  other- 
wise provided,  may  be  brought 
in  the  name  of  the  state. 

1214.  Prosecuting  attorneys  to  direct 
post  mortem  examinations. 

1215.  Persons  participating  in  un- 
lawful gaming  compelled  to 
testify  of  the  gaming,  not  to 
be  prosecuted  therefor. 

1216.  OlHcers  who  are  authorized  to 
keep  the  peace. 

1217.  Duty  of  magistrate  on  com- 
plaint being  made. 

1218.  When  warrant  to  issue. 

1219.  To  whom  the  warrant  shall  be 
directed. 

1220.  Duty  of  magistrate  on  return 
of  warrant. 

1221.  When  party  complained  of 
discharged  and  when  im- 
prisoned. 

1223.  How  discharged  subsequently. 

1223.  Kecognizance  to  be  returned 
to  next  term  of  court. 

1224.  Persons  committing  breach  of 
the  peace  in  presence  of  the 
court  may  be  required  to  give 
security  or  imprisoned. 

1225.  Proceedings  on  recognizan- 
ces. 

1236.  If  complainant  does  not  ap- 
pear, the  accused  shall  be  dis- 
charged, otherwise  court  to 
hear  the  proofs,  and  decide 
accordingly. 


Section. 

1227.  Recognizance,  when  deemed 
broken. 

1228.  When  there  is  evidence  of 
breach,  court  shall  order  re- 
cognizance prosecuted. 

1229.  Term  of  court  expiring  during 
progress  of  trial,  court  shall 
continue  it. 

1230.  Bail  may  arrest  and  surrender 

principal  before  final  judg- 
ment; bail  not  thereby  dis- 
charged after  recognizance 
forfeited. 

1231.  Persons  surrendered  may  give 
other  bail;  sheiifl  allowing  a 
release  liable  to  be  amerced 
and  indicted. 

1282.  Sheriff  or  other  officer  having 
prisoner  in  custody  may  take 
bail. 

1233.  Matter  of  defense  which  is 
good  for  principal  is  good  for 
bail. 

1234.  Appeals  by  defendant  to  su- 
preme court. 

1235.  Convicted  persons  may  appeal 
without  giving  security  for 
costs. 

1236.  Judge  to  grant  appeal  and  re- 
quire defendant  to  give  secur- 
ity for  his  appearance. 

1237.  Appeal  by  state ;  in  what  cases 
recognized. 

1238.  What  the  commitment  shall 
set  forth. 

1239.  Duty  of  solicitors  to  prosecute 
certain  criminal  cases  in  tlie 
United  Sta-tes  courts. 

1240.  Compensation  of  solicilors  in 
such  cases. 

1241.  Concurrent  jurisdiction  of  in- 
ferior and  superior  courts  in 
certain  criminal  cases,  with  a 
view  to  a  speedy  trial  of 
criminals. 

1242.  Pending  cases  remaining  un- 
tried to  be  transferred  to  sue 


Chap.  26.]     CRIMINAL  PEOCEEDINGS.  455 


Section. 

ceeding  court,  wlietber  inferior 
or  superior. 

1243.  The  execution  of  capital  offen- 
ders is  to  be  private,  unless  the 


Section. 

board  of  county  commissioners 
shall  otherwise  order. 

1344.  Sheriff  may  admit  to  witness 
the  execution,  two  physicians 
and  necessary  assistaats. 


Sec.  1124.  Persons  present  at  breaches  of  the  peace  to 
arrest  oflenders.    1868-'9,  c.  178,  sub  chap.  1,  s.  1. 

Every  person  present  at  any  riot,  rout,  affray  or  other 
breach  of  the  peace,  shall  endeavor  to  suppress  and  pre- 
vent the  same,  and  if  necessary  for  that  purpose,  shaU 
arrest  the  offenders. 

State  V.  Belk,  76—10. 

Sec.  1125.  Persons  summoned  by  officer  must  assist  In  the 
arrest.    1868-'9,  c.  178,  sub  chap.  1,  s.  2. 

Every  person  summoned  by  a  judge,  justice,  mayor, 
intendant,  chief  officer  of  any  incorporated  tovs^n,  sheriff, 
coroner  or  constable,  to  aid  in  suppressing  any  not,  rout, 
•unlawful  assembly,  affray  or  other  breach  of  the  peace, 
or  to  arrest  the  persons  engaged  in  the  commission  of 
such  offences,  or  to  prevent  the  commission  of  any  felony 
or  larceny  which  may  be  threatened  or  begun,  shall 
do  so. 

State  V.  Belk,  76—10. 

Sec.  112G.  Peace  officers  shall  arrest  without  warrant  in 
certain  cases.    1868-'9,  c.  178,  sub  chap.  1,  s.  3. 

Every  sheriff,  coroner,  constable,  officer  of  police,  or 
other  officer,  entrusted  with  the  care  and  preservation  of 
the  public  peace,  who  shall  know  or  have  reasonable 
ground  to  believe  that  any  felony  or  larceny  has  been 
committed,  or  that  any  dangerous  wound  has  been  given, 
and  shall  have  reasonable  ground  to  believe  that  any  par- 
ticular person  is  guilty,  and  shall  apprehend  that  such 
person  may  escape  if  not  immediately  arrested,  shall  ar- 
rest him  without  warrant,  and  may  summon  all  bystand- 
ers to  aid  in  such  arrest. 

State  V.  Belk,  76—10. 

Sec.  1127.  Houses  may  be  broken  open  to  prevent  a  felony 
therein.    1868-'9,  c.  178,  sub  chap.  1,  s.  4. 

All  persons  are  authorized  to  break  open  and  enter  a 
house  to  prevent  a  felony  about  to  be  committed  therein. 


456  CRIMINAL  PEOCEEDINGS.      [Chap.  26. 

Sec.  1128.  Officers  may  break  open  doors  to  arrest  per- 
sons charged  with  high  crimes.  1868.'9,  c.  178  sub 
chap.  1,  s.  6.  »       »» 

If  a  felony  or  other  infamous  crime  has  been  com- 
mitted, or  a  dangerous  wound  has  been  given  and  therft 
IS  reasonable  ground  to  believe  that  the  guilty  person  S 
concealed  m  a  house,  it  shaU  be  lawful  for  an?  sheriff 
coroner,  constable,  or  police  officer,  admittance  having 
be«n  demanded  and  denied,  to  break  open  the  door  and 
enter  the  house  and  arrest  the  person  against  whom  there 
shall  be  such  ground  of  belief. 

Sec.  1129.  Persons  in  whose  presence  an  infamous  crime 
IS  committed,  may  arrest  the  offender.  1868-'0  o 
178,  sub  chap.  1,  s.  6. 

Every  person  in  whose  presence  a  felony  or  other  infa- 
mous crime  has  been  committed  may  arrest  the  person 
whom  he  knows  or  has  reasonable  ground  to  !  elieve  to 
be  gmlty  of  such  offence,  and  it  shall  be  the  duty  o  ever? 
sheriff,  coroner  constable  or  officer  of  police,  upon  infor- 
mation, to  assist  in  such  arrest. 

Sec.  1 130.  Persons  arrested  without  warrant  entitled  to 
have  an  immediate  hearing.  1868.'9,  c.  178  sub 
chap.  1,  s.  7.  ' 

.  Every  person  arrested  without  warrant  shall  be  either 
immediately  taken  before  some  magistrate  havinciuSs 
diction  to  issue  a  warrant  in  the  case,  or  else  conmiitted 
to  the  county  prison,  and,  as  soon  as  may  be,  taken  be- 
fore such  magistrate,  who,  on  proper  proof,  shall  issue  a 
b"™  P'"'"''^^'^  ^"^  ^""^  "^  ™^y  ^®  required 

Sec.  1131.  Felons  fleeing  from  justice,  outlawed.     186fi 
c.  62.     1868-'9,  c.  178,  sub  chap.  1,  s.  8. 

_  In  all  cases  where  any  two  justices  of  the  peace,  or  any 
judge  of  the  supreme,  superior  or  criminal  courts  shall 
on  written  affidavit,  filed  and  retained  by  such  iiisticeor 
judge  receive  mformation  that  a  felony  has  been  com- 
mitted by  any  person,  and  that  such  person  flees  from 
justice,  conceals  himself  and  evades  arrest,  and  service  of 
the  usual  process  of  the  law,  the  said  judge,  or  the  said  two 
justices,  being  justices  of  the  county  whmein  such  person 
13  supposed  to  lurk  or  conceal  himself,  are  hereby  em- 
powered and  required  to  issue  proclamation  against  him 
reciting  his  name,  if  known,  and  therebv  requiring  him 
forthwith  to  surrender  himself;  and  also,"  when  issued  by 


Chap.  26.]      CEIMINAL  PEOCEEDINGS.  457 

any  judge,  empowering  and  requiring  the  sheriff  of  anv 
county  in  the  state  in  which  said  fugitive  shall  be,  and 
when  issued  by  two  justices  empowenng  and  requiring 
the  sheriff  of  the  county  of  said  justices,  to  take  such 
power  with  him  as  he  shall  think  fit  and  necessary  for 
going  in  search  and  pursuit  of,  and  effectually  apprehend- 
ing- such  fugitive  from  justice,  which  proclamation  shall 
be  publisheii  at  the  door  of  the  court  house  of  any  county 
in  which  such  fugitive  is  supposed  to  lurk  or  conceal  him- 
self, and  at  such  other  places  as  the  judge  or  justices  shaU 
direct;  and  if  any  person  against  whom  proclamation 
hath  teen  thus  issued,  continue  to  stay  out,  lurk  and 
conceal  himself,  and  do  not  immediately  surrender  him- 
self, any  citizen  of  the  state  may  capture,  arrest  and 
bring  him  to  justice,  and  in  case  of  flight  or  resistance  by 
him,  after  being  called  on  and  warned  to  surrender,  may 
slay  him  without  accusation  or  impeachment  of  any 
crime. 

Sec.  1132.  Wlio  may  issue  criminal  process.  1868-'9,  c. 
178,  sub  chap.  3,  s.  1. 

The  following  persons  respectively  shall  have  power  to 
issue  process  for  the  apprehension  of  persons  charged 
with  any  offence,  and  to  execute  the  po%vers  and  duties 
conferred  in  this  chapter,  namely:  the  chief  justice  and 
the  associate  justices  of  the  supreme  court,  the  judges  of 
the  superior  court,  judges  of  criminal  courts,  presiding 
ofificers  of  inferior  courts,  justices  of  the  peace,  mayors  of 
cities,  or  other  chief  officers  of  incorporated  towns. 

Blate  V.  James,  80—370. 

Sec.  1133.  Duty  of  magistrate  on  complaint  being  made 
to  bim  of  tbe  commission  of  a  crime.  1868-'9,  c.  178, 
sub  chap.  3,  s.  2. 

Whenever  complaint  shall  be  made  to  any  such  magis- 
trate, that  a  criminal  offence  has  been  committed  within 
this  state,  or  without  this  state  and  within  the  United 
States,  and  that  a  person  charged  therewith  is  in  this 
state,  it  shall  be  the  duty  of  such  magistrate  to  examine 
on  oath  the  complainant  and  any  witnesses  who  may  be 
produced  by  him. 

State  V.  James,  80—370;  State  v.  Bryson,  84—780. 

Sec.  1134.  Duty  of  magistrate  to  issue  his  warrant  for  tbe 
arrest  of  the  accused.  1808-'9,  c.  178,  sub  chap.  3, 
s.  3. 

If  it  shall  appear  from  such  examination  that  any 


458  CRIMINAL  PROCEEDINGS.      [Chap.  26. 

criminal  offence  has  been  committed,  the  magistrate 
shall  issue  a  proper  warrant  under  his  hand,  with  or 
without  seal,  reciting  the  accusation,  and  commanding  the 
officer,  to  whom  it  shall  be  directed,  forthwitli  to  take 
the  person  accused  of  having  committed  such  offence, 
and  to  bring  him  before  a  magistrate,  to  be  dealt  with 
according  to  law. 

State  V.  James,  78—455;  State  v.  Bryson,  84—780. 

Sec.  1 135.  Where  warrant  to  run.  1868-'9,  c.  178,  sub 
cliap.  3,  s.  4. 

Warrants  issued  by  any  justice  of  the  supreme  court, 
or  by  any  judge  of  the  superior  court,  or  of  a  criminal 
court,  may  be  executed  in  any  part  of  this  state;  war- 
rants issued  by  a  justice  of  the  peace,  or  by  the  chief 
officer  of  any  city  or  incorporated  town,  may  be  executed 
in  any  part  of  the  county  of  such  justice,  or  in  which 
such  city  or  town  is  situated,  and  on  any  river,  bay  or 
sound  forming  the  boundary  between  that  and  some 
other  county,  and  not  elsewhere,  unless  indorsed  as  pre- 
scribed in  the  section  following. 

Sec.  1136.  How  warrants  may  be  indorsed.  1868-'9,  c. 
178,  sub  chap.  3,  s.  5. 

If  the  person  against  whom  any  warrant  granted  by 
any  such  justice  of  the  peace  or  chief  officer  of  a  city  or 
town  shall  be  issued,  shall  escape,  or  be  in  any  other 
county  out  of  the  jurisdiction  of  such  justice  or  chief 
officer,  it  shall  be  the  duty  of  any  justice  of  the  peace,  or 
any  other  magistrate  named  in  this  chapter  within  the 
county  where  such  offender  shall  be,  or  shall  be  suspected 
to  be,  upon  proof  of  the  handwriting  of  the  magistrate 
issuing  the  warrant,  to  indorse  his  name  on  the  same, 
and  thereupon  the  person,  or  officer  to  whom  the  warrant 
was  directed,  or  any  officer  of  the  county  in  which  it 
was  indorsed,  to  whom  it  may  be  delivei-ed,  may  arrest 
the  offender  in  that  county. 

State  V.  James,  80—370. 

Sec.  1137.  Magistrate  not  liable  to  indictment  or  action 
for  improperly  indorsing  warrant.  1868-'i>,  c.  178, 
sub  chap.  3,  s.  O. 

No  magistrate  shall  be  liable  to  any  indictment,  action 
for  trespass  or  other  action  for  having  indorsed  any  war- 
rant pursuant  to  the  provisions  of  the  last  section,  al- 
though it  should  afterwaid  ap})ear  that  such  warrant 
was  illegally  or  improperly  issued. 

State  V.  Bailey,  73—70. 


Chap.  26.]      CEIMINAL  PROCEEDINGS.  459 

Sec.  1138.  Person  arrested  to  be  taken  before  .some  magis- 
trate of  the  county  Tvhei'e  oftenoe  was  committed. 
1868-'9,  c.  178,  sub  chap.  3,  s.  7. 

It  shall  be  the  duty  of  the  oflficer  making  the  arrest  to 
take  the  person  charged  with  the  offence  befoi'e  some 
magistrate  of  the  county  in  which  the  ofifence  is  charged 
to  have  been  committed,  or  before  any  judge  of  the  su- 
preme, superior  or  criminal  court. 

'i    Sec.  1139.  Magistrate  shall  take  bail,  if  the  ottence  be  not 
j  a  capital  one.      1868-'9,   c.    178,   sub  chap.    3,    s.    8. 

1871-'2,  c.  37,  s.  1. 

If  the  offence  charged  in  the  warrant  be  not  punish- 
able with  death,  such  magistrate  may  take  from  the  per- 
son so  arrested  a  recognizance  with  sufficient  sureties  for 
his  appearance  at  the  next  term  of  the  court  having 
jurisdiction,  to  be  held  in  the  county  where  the  ofifence 
shaU  be  alleged  to  have  been  committed. 

Sec.  1140.  Duty  of  magistrate  granting  bail.  1868-'9,  c. 
178,  sub  chap.  3,  s.  9. 

Such  magistrate  shall  certify  on  the  Avarrant  the  fact 
of  his  having  let  the  defendant  to  bail,  and  shall  deliver 
■  the  same,  together  with  the  recogiaizance  taken  by  him, 
to  the  officer  or  other  person  having  charge  of  the  prisoner, 
who  shall  deliver  the  same  without  unnecessary  delay  to 
the  clerk  of  the  court  in  which  such  prisoner  shall  have 
been  recognized  to  appear. 

State  V.  Bailey,  73—70. 

Sec.  1141.  If  bail  is  not  allowed,  or  is  not  given,  the  ac- 
cused to  be  taken  before  a  magistrate  of  the  county 
where  the  Avarraut  was  issued.  1868-'9,  c.  178,  sub 
chap.  3,  s.  10. 

If  such  magistrate  refuse  to  bail  the  person  so  arrested, 
or  if  such  person  fail  to  give  bail  as  above  provided,  the 
officer  or  person  having  him  in  charge  shall  take  him  be- 
fore a  magistrate  of  the  county  in  which  the  warrant  was 
originally  issued  as  hereinafter  provided. 

Sec.  1142.  In  capital  cases  the  prisoner  must  be  brought 
before  a  magistrate  of  the  county  where  the  warrant 
was  issued  or  before  some  judge  of  the  supreme  or 
superior  court.     1868-'9,  c.  178,  sub  chap.  3,  s.  11. 

If  the  offence  charged  in  the  warrant  be  punishable 
with  death,  the  ofificer  making  the  arrest  shall  convey  the 
prisoner  to  the  county  where  the  warrant  was  originally 


460  CEIMINAL  PEOCEEDINGS.      [Chap.  26. 

issued,  before  some  magistrate  thereof,  or  before  a  iudge 
01  the  supreme  or  superior  court. 

Sec.  1 143.  Before  what  magistrate  warrant  to  be  return- 
able,    1868-'9,  c.  178,  sub  chap.  3,  s.  12. 

Persons  arrested  under  any  warrant  issued  for  any 
ottence,  where  no  provision  is  otlierwise  made,  shall  be 
brought  before  the  magistrate  who  issued  the  warrant  • 
or,  It  he  be  absent,  or  from  any  cause  unable  to  try  the 
case,  before  the  nearest  magistrate  in  the  same  county  • 
and  the  warrant,  by  virtue  of  which  the  arrest  shall  have 
been  made,  with  a  proper  return  indorsed  thereon  and 
signed  by  the  officer  or  pereon  making  the  arrest,  shall 
be  dehvered  to  such  magistrate. 

State  V.  James,  78 — 455. 

Sec.  1144.  Duty  of  the  examining  magistrate.  18G8-'9. 
c.  178,  sub  chap.  3,  s.  13. 

The  magistrate,  before  whom  any  such  person  shall  be 
brought,  shall  proceed,  as  soon  as  may  be,  to  examine  the 
complainant,  and  the  witnesses  produced  in  support  of 
the  prosecution,  on  oath,  in  the  presence  of  the  prisoner 
in  regard  to  the  oiTence  charged,  and  in  regard  to  any 
other  matters  connected  with  such  charge,  which  such 
magistrate  may  deem  pertinent. 

State  V.  James,  78—455;  State  t.  Bridges,  87—562. 

Sec.  1145.  The  examination;  prisoner  to  be  allowed  time 
to  advise  with  counsel  and  to  cross-examine  witness 
agaiust  him.     1868-'9,  c.  178,  sub  chap.  3,  s.  14. 

The  magistrate  shall  then  proceed  to  examine  the 
prisoner  in  lelation  to  the  offence  charged.  Such  exam- 
ination shall  not  be  on  oath  ;  and  before  it  is  commenced 
the  prisoner  shall  be  informed  of  the  charge  made  against 
him,  and  shall  be  allowed  a  reasonable  time  to  send  for 
and  advise  with  counsel.  If  desired  by  the  person  arrested 
his  counsel  shall  be  present  during  the  examination  of 
the  complainant  and  the  witnesses  on  the  part  of  the 
prosecution,  and  duiing  the  examination  of  the  prisoner; 
and  the  prisoner  or  his  counsel  shall  be  allowed  to  cross- 
examine  the  complainant  and  the  witnesses  for  the 
prosecution. 

State  V.  Needliam,  78—474;  State  v.  James,  78—455. 


Chap.  26.]      CRIMINAL  PROCEEDINGS.  461 

Sec.  1146.  Prisoner  shall  be  informed  that  he  may  refuse 
to  answer  any  questions.  18C8-'9,  c.  178,  sub  chap. 
3,  s.  15. 

At  the  commencement  of  the  examination,  the  pris- 
oner shall  be  informed  by  the  magistiate  that  he  is  at 
liberty  to  refuse  to  answer  any  question  that  may  be  put 
to  him,  and  that  his  refusal  to  answer  shall  not  be  used 
to  his  prejudice  in  any  stage  of  the  proceedings. 

State  V.  Matthews,  CC— 106;  State  v.  Eone,  74—148;  State  v.  Needham, 
78—474;  State  v.  Spier,  86— GOO. 

Sec.  1147.  Answer  of  prisoner  shall  be  reduced  to  writ- 
injf.     1868-'9,  c.  178,  sub  chap.  3,  s.  10. 

The  answer  of  the  prisoner  to  the  several  interroga- 
tories shall  be  reduced  to  writing  by  the  magistrate,  or 
under  his  direction:  they  shall  be  read  to  the  prisoner 
who  n)ay  correct  or  add  to  them;  and  when  made  con- 
formable to  what  he  declares  is  the  truth,  shall  be  certi- 
fied and  signed  by  the  magistrate. 

State  V.  Bridgcrs,  87—563. 
Sec.  1148.  Prisoner  may  ex.amine  witnesses  and  have  the 
assistance  of  counsel.      18G8-'9,  c.  178,  sub  chap.  3,  s. 
17. 

After  the  examination  of  the  prisoner  is  complete,  his 
witnesses,  if  he  have  any,  shall  be  sworn  and  examined, 
and  he  may  have  the  assistance  of  counsel  in  such  ex- 
amination. 

Sec.  1149.  The  prisoner  shall  not  be  examined  in  the 
presence  of  witnesses;  witnesses  may  be  exumined  sep- 
arately.   18G8-'9,  c.  178,  sub  chap.  3,  s.  18. 

The  witnesses  produced  on  the  part  either  of  the  pris- 
oner or  of  the  prosecution  shall  not  be  present  at  the  ex- 
amination of  the  prisoner;  and  while  any  witness  is 
under  examination  the  magistiate  may  exclude  from  the 
place  in  which  such  examination  is  had  all  witnesses 
who  have  not  been  examined,  and  may  cause  the  wit- 
nesses to  be  kept  separate  and  prevented  from  convers- 
ing with  each  other  until  they  shall  have  been  examined. 

Sec.  1150.  The  testimony  of  witnesses  to  be  reduced  to 
writing.     1868-'9,  c.  178,  sub  chap.  3,  s.  19. 

The  evidence  given  by  the  several  witnesses  exainined 
shall  be  reduced  to  writing  by  the  magistrate  or  under 
his  direction,  and  shall  be  signed  by  the  witnesses  respec- 
tively. 

State  V.  Valentine,  7  Ired.,  225. 


462  CRIMINAL  PROCEEDINGS.      [Chap.  26. 

Sec.  1161.  When  prisoner  shall  be  dischargred.  1868-'9 
c.  178,  sub  chap.  3,  s.  20.  ' 

If,  upon  examination  of  the  whole  matter,  it  shall 
appear  to  the  magistrate  either  that  no  offence  lias  been 
committed  by  any  person  or  that  there  is  no  probable 
cause  for  charging  the  prisoner  therewith,  he  shall  dis- 
charge such  prisoner. 

Sec.  1152.  When  prisoner  shall  be  hound  over.  1868-'9, 
c.  178,  sub  chap.  3,  s.  31. 

If  it  shall  appear  that  an  offence  has  been  committed, 
and  that  there  is  probable  cause  to  believe  the  prisoner  to 
be  guilty  thereof,  the  magistrate  shall  bind  by  recogni- 
zances the  prosecutor  and  all  the  material  witnesses  against 
such  prisoner  to  appear  and  testify  at  the  next  term  of 
the  court  having  jurisdiction  for  the  county  in  which  the 
offence  is  alleged  to  have  been  committed. 

Sec.  1153.  Magistrate  need  not  take  the  examination  of  a 
prisoner  charged  with  a  misdemeanor.  1868-'9,  c. 
178,  sub  chap.  3,  s.  22. 

Nothing  contained  in  the  preceding  sections  of  this 
chapter  shall  be  construed  to  require  any  magistrate, 
before  whom  a  prisoner  charged  with  a  misdemeanor 
shall  be  brought,  to  take  the  examination  of  such  pris- 
oner, except  where  such  magistrate  shall  deem  it  mate- 
rial so  to  do,  or  where  such  examination  shall  be  required 
by  the  prisoner. 

Sec.  1 154.  Witnesses  may  be  required  to  give  security  for 
their  appearance.    1868-'9,  c.  178,  sub  chap.  3,  s.  i23. 

Whenever  such  magistrate  shall  be  satisfied  by  the 
proof  tha,t  there  is  good  reason  to  believe  that  any"  such 
witness  will  not  fulfill  the  conditions  of  such  recognizance 
unless  security  be  required,  he  may  order  such  witness  to 
enter  into  a  recognizance  with  such  sureties  as  he  shall 
deem  meet  for  his  appearance  at  such  court. 

Sec.  1155.  Witness  not  giving  the  security  required  may 
be  committed  to  prison.  1868-'9,  c.  178,  sub  chap. 
3,  s.  24. 

If  any  witness  so  required  to  enter  into  a  recognizance, 
either  with  or  without  sureties,  shall  refuse  to  comply 
with  such  order,  it  shall  be  the  duty  of  such  magistrate 
to  commit  him  to  prison  until  he  shall  comply  with  such 
order,  or  be  otherwise  discharged  according  to  law. 


Chap.  26.]     CRIMINAL  PROCEEDINGS.  463 

Sec.  1156.  Wlienbail  shall  be  allowed.  1868-'9,  c.  178, 
sub  chap.  3,  s.  35. 

If  the  offence  with  which  the  prisoner  is  charged  be 
bailable,  and  the  prisoner  offer  sufficient  bail,  such  bail 
shall  be  taken  and  the  ])risoner  discharged;  if  no  bail  be 
offered,  or  the  offence  be  not  bailable,  the  prisoner  shall 
be  committed  to  prison. 

Sec.  1157.  Examinations  and  recognizances  to  be  certified 
to  tbe  court  by  the  committing  magisti-ate.  1868-'9, 
c.  178,  sub  chap.  3,  s.  36. 

All  examinations  and  recognizances  taken  pursuant  to 
the  provisions  of  this  chapter  shall  be  certified  by  the 
magistrate  taking  the  same  to  the  court  at  which  the  wit- 
nesses are  bound  to  appear,  on  the  first  day  of  the  sitting 
thereof;  and  the  examinations  taken  and  subscribed  as 
herein  prescribed,  may  be  used  as  evidence  before  the 
grand  jury,  and  on  the  trial  of  the  accused,  provided  he 
was  present  at  the  taking  thereof  and  had  an  opportunity 
to  hear  the  same  and  to  cross-examine  the  deposing  wit- 
ness, if  such  witness  be  dead  or  so  ill  as  not  to  be  able  to 
travel,  or  by  procurement  or  connivance  of  the  defendant, 
hath  removed  from  the  state  or  is  of  unsound  mind. 

State  V.  Grady,  83—643;  State  v.  King,  86—600;  State  v.  Bridgers,  87— 
563. 

Sec.  1158.  Penalty  on  magistrate  failing  to  make  the 
required  return.     1868-'9,  c.  178,  sub  chap.  3,  s.  37. 

If  any  magistrate  shall  refuse  or  neglect  to  return  to 
the  proper  court  any  such  examination  or  recognizance 
by  him  taken,  he  may  be  compelled  by  rule  of  court 
forthwith  to  return  the  same,  and  in  case  of  disobedience 
of  such  rule,  may  be  proceeded  against  by  attachment  as 
for  contempt  of  court  as  provided  by  law. 


Sec.  1159.  The  magistrate  may  associate   with   himself 
another.    1868-'9,  c.  178,  sub  chap.  3,  s.  28. 

It  shall  be  lawful  for  any  magistrate,  to  whom  any 
complaint  may  be  made,  or  before  whom  any  prisoner 
may  be  brought,  as  hereinbefore  provided,  to  associate 
with  himself  any  other  magistrate  of  the  same  county; 
and  the  powers  and  duties  herein  mentioned  may  be  exe- 
cuted by  such  two  magistrates  so  associated. 


*64  CKIMINAL  PEOCEEDINGS.      [Chap.  26. 

Sec.  1160.  Who  may  bail  persons  charged  with  crime  but 
not  imprisoned.  1868-'9,  c.  178,  sub  chap.  3  a.  29 
1871-'2,  c.  37.  ,"•"». 

Oflficers  befoie  whom  persons  charged  with  crime,  but 
who  have  not  been  committed  to  prison  by  an  authorized 
magistrate,  shaU  be  brought,  shall  have  power  to  take 
bail  as  follows: 

(1)  Any  justice  of  the  supreme  court,  or  a  judge  of  a 
superior  court,  or  of  a  criminal  court,  in  all  cases 

(2)  Any  justice  of  the  peace  or  chief  magistrate  of  any 
incorporated  city  or  town,  in  all  cases  of  misdemeanor 
and  m  all  cases  of  felony  not  capital. 

Sec.  1161.  Who  may  let  to  bail  persons  charged  with 
crime  and  in  prison.  1868-'9,  c.  178,  sub  chap.  3.  s 
30.  ^      ' 

Any  justice  of  the  supreme  court  or  any  judge  of  a 
superior  court  or  of  a  criminal  court,  shall  have  power  to 
bail  persous  committed  to  prison  charged  with  crime  in 
all  cases;  any  justice  of  the  peace  or  chief  magistrate  of 
any  incorporated  city  or  town  shall  have  the  same  power 
m  all  cases  where  the  punishment  is  not  capital.  ' 

Sec.  1 1G2.  When  a  prisoner  is  bailed,  the  recognizance 
taken  by  the  officer  sliall  be  filed  with  the  clerk  of  the 
court.     18G8-'9,  c.  178,  sub  chap.  3,  s.  31. 

Whenever  any  prisoner  shall  be  bailed  by  any  officer 
under  the  precedmg  section,  such  officer  shall  imme- 
diately cause  the  recognizance  taken  by  him  to  be  filed 
with  the  clerk  of  the  court  of  the  county  to  which  the 
prisoner  is  recognized. 

Sec.  1163.  What  every  commitment  shall  state.    1868-'9 
c.  178,  sub  chap.  3,  s.  33.  * 

Every  commitment  to  prison  of  a  pereon  charged  with 
crime  shall  state: 

(1)  The  name  of  the  person  charged; 

(2)  The  character  of  the  offence  with  which  he  is 
charged ; 

(3)  The  name  and  office  of  the  magistrate  committing 

(4)  The  manner  in  which  he  maybe  discharged-  if 
upon  giving  recognizance  or  bail,  the  amount  of  said  re- 
cognizance, the  condition  on  the  performance  of  wiiich 
it  shall  be  discharyod,  and  the  ])ersOns  or  magistrate  be- 
fore whom  the  bail  may  justify; 


Chap.  26.]     CRIMINAL  PEOCEEDINGS.  465 

(5)  The  court  before  which  the  prisoner  shall  be  sent 
for  triah 

State  V.  James,  78—455. 

Sec.  1164:.  To   what  jail   prisoner   shall   be   committed. 
1868-'9,  c.  178,  sub  chap.  2,  s.  33. 

All  persons  committed  to  prison  before  conviction  shall 
be  committed  to  the  jail  of  the  county  in  which  the  ex- 
amination is  had,  or  to  that  of  the  county  m  which  the 
offence  is  charged  to  have  been  committed:  Provided,  if 
the  jails  of  these  counties  are  unsafe,  or  injurious  to  the 
health  of  prisoners,  the  committing  magistrate  may- 
commit  to  the  jail  of  any  other  convenient  county.  And 
every  sheriff  or  jailer  to  whose  jail  any  person  shall  be 
committed  by  any  court  or  magistrate  of  competent 
jurisdiction,  shall  receive  such  prisoner  and  give  a  receipt 
for  him,  and  be  bound  for  his  safe-keeping  as  prescribed 
by  law. 

Sec.  1165.  Fugitives  from  justice,  who  may  arrest. 
1868-'9,  c.  178,  sub  chap.  3,  s.  34. 

Any  justice  of  the  supreme  court,  or  any  judge  of  the 
superior  court  or  of  any  criminal  court,  or  any  justice  of 
the  peace,  or  mayor  of  any  city,  or  chief  magistrate  of 
any  incorporated  town,  on  satisfactory  information  laid 
before  him  that  any  fugitive  in  the  state  has  committed, 
out  of  the  state  and  within  the  United  States,  any  offence 
which,  by  law  of  the  state  in  which  the  offence  was  com- 
mitted, is  punishable  either  capitally  or  b>  imprisonment 
for  one  year  or  upwards  in  any  state  prison,  shall  have 
fuU  power  and  authority,  and  is  hereby  required  to  issue 
a  warrant  for  said  fugitive  and  commit  him  to  any  jail 
within  the  state  for  the  space  of  six  mouths,  unless 
sooner  demanded  bv  the  public  authorities  of  the  state 
wherein  the  offence  may  have  been  committed,  pursuant 
to  the  act  of  congress  in  that  case  made  and  provided:  if 
no  demand  be  made  within  that  time  the  said  fugitive 
shall  be  liberated,  unless  sufficient  cause  be  shown  to  the 
contrary. 

Price  V.  Graham,  3  Jon.,  546;  In  re.  Hughes,  Phil.,  57;  State  v.  Shclton, 
79—605. 

Sec.  1166.  Magistrate  to  keep  record  of  the  proceedings 
and  transmit  copy  to  the  governor.  1868-'9,  c.  178, 
sub  chap.  3,  s.  35. 

Every  magistrate  committing  any  person  under  the 
preceding  section,  shall  keep  a  record  of  the  whole  pro- 


466  CRIMINAL  PROCEEDINGS.      [Chap.  26. 

ceedmgs  before  him,  and  immediately  transmit  a  copy 
thereot  to  the  governor  for  such  action  as  he  may  deem 
fit  therem  under  the  law. 

Sec.   1167.  Duty  of  the  governor.    1868-'9,  c.  178    sub 
chap.  3,  s.  30. 

The  governor  shall  immediately  inform  the  governor  of 
tne  state  or  territory  in  which  the  crime  is  alleged  to  have 
been  committed  or  the  president  of  the  United  States,  if 
It  be  alleged  to  have  been  committed  within  the  District 
ot  Columbia,  of  the  proceedings  had  in  such  case. 

Sec.  1168.  Every  sheriff  or  jailer  shall  surrender  the 
lugitive  upon  the  order  of  the  governor.  1868-'9  c 
178,  sub  chap.  3,  s.  37.  ' 

Every  sheriff  or  jailer,  in  whose  custody  any  person  so 
committed  shall  be,  upon  the  order  of  the  governor,  shaU 
surrender  him  to  the  person  named  in  such  order. 

Sec.  1109.  Governor  may  employ  agent  or  offer  reward 
tor  the  apprehension  of  fugitives  charged  with  felony. 
R.  C,  c.  35,  s.  4.  1800,  c.  561.  1806,  c.  28.  1868- 
'9,  c.  52.     1870-'l,  c.  15.     1871-'2,  c.  29. 

The  governor,  on  information  made  to  him  of  any  per- 
son having  committed  a  felony  or  other  infamous  crime 
within  the  state,  and  of  having  fled  out  of  the  iurisdic- 
tion  thereof,  or  who  conceals  himself  within  the  state  to 
avoid  arrest,  or  who  having  been  convicted  has  escaped 
and  cannot  otherwise  be  apprehended,  may  either  employ 
a  special  agent,  with  a  sufficient  escort,  to  pursue  and  ap- 
prehend such  fugitive,  or  issue  his  proclamation,  and 
therein  offer  a  reward,  not  exceeding  four  hundred  dol- 
lars, according  to  the  nature  of  the  case,  as  in  his  opinion 
may  be  sufficient  for  the  purpose,  to  be  paid  to  him  who 
shall  apprehend  and  deliver  the  fugitive  to  such  person 
and  at  such  place  as  in  the  proclamation  shall  be  directed  • 
and  he  may  from  time  to  time  issue  his  warrants  on  the 
state  treasurer  for  sufficient  sums  of  money  for  such  pur- 
pose. ^ 

Sec.  1 1 70.  Governor  may  draw  on  the  state  treasurer  for 
money  necessary  to  pay  expenses  of  arresting  fugitives 
from  justice.    1870-'l,  c.  82. 

In  all  cases  where  the  governor  of  the  state  has  made 
a  requisition  on  the  governor  of  another  state  for  any 
tugitive  from  justice  and  has  sent  an  agent  to  receive  said 
fugitive,  It  shaU  be  lawful  for  the  governor  to  issue  a 


Chap.  26.]      CRIMINAL  PROCEEDINGS.  467 

warrant  on  the  state  treasurer  for  the  amount  of  money 
necessary  to  pay  the  expenses  of  said  agent  and  other 
costs  in  the  arresting  of  said  fugitive  from  justice,  to  be 
paid  by  the  treasurer  of  the  state. 

Sec.  1171.  Of  searcli  waiiauts.  1868-'9,  c.  178,  subchap. 

3,  s.  as. 

If  any  credible  witness  shall  prove,  upon  oath,  before 
any  iustice  of  the  peace,  or  mayor  of  any  city  or  chief 
magistrate  of  any  incorporated  town,  that  there  is  a 
reasonable  cause  to  suspect  that  any  person  has  m  his 
possession,  or  on  his  premises,  any  property  stolen,  or  any 
false  or  counterfeit  coin  resembling,  or  apparently  in- 
tended to  resemble,  or  pass  for,  any  current  coin  of  the 
United  States,  or  of  any  other  state,  province  or  country, 
or  any  instmment,  tool  or  engine  whatsoever,  adapted  or 
intended  for  the  counterfeiting  of  any  such  coin;  or  any 
false  and  counterfeit  notes,  bills  or  bonds  of  the  bnited 
States,  or  of  the  state  of  North  Carolina,  or  of  any  other 
state  or  country,  or  of  any  county,  city  or  incorporated 
town;  or  any  instrument,  tool  or  engine  whatsoever, 
adapted  or  intended  for  the  counterfeiting  of  such  note, 
bill  or  bond,  it  shall  be  lawful  for  such  justice,  mayor  or 
chief  magistrate  of  any  incorporated  town,  to  grant  a 
warrant,  to  be  executed  within  the  hmits  of  his  county 
or  of  the  county  in  which  such  city  or  mcorporated  town 
is  situated,  to  "any  proper  officer,  authorizing  him  to 
search  for  such  property,  and  to  seize  the  same,  and  to 
arrest  the  person  having  in  possession,  or  on  whose 
premises  may  be  found,  such  stolen  property,  counter- 
feit coin,  counterfeit  notes,  bills  or  bonds,  or  the  instru- 
ments, tools  or  engines  for  making  the  same,  and  to  bring 
them  before  any  magistrate  of  competent  jurisdiction, 
to  be  dealt  with  accordmg  to  law. 

Sec.  1172.  Searcli  warrant,  its  form  and  the  proceedings 
thereon.    1868-'9,  c.  178,  sub  chap.  3,  s.  39. 

Such  search  warrant  shall  describe  the  article  to  be 
searched  for  with  reasonable  certainty,  and  by  whom  the 
complaint  is  made,  and  in  whose  possession  the  article  to 
be  searched  for  is  supposed  to  be;  it  shall  be  made  return- 
able as  other  criminal  process  is  by  law  required  to  be, 
and  the  proceedings  thereupon  shall  be  as  is  required  m 
other  cases  of  criminal  complaint. 


4e8  CEIMINAL  PEOCEEDINGS.      [Chap.  26. 

Sec.  1173.  Of  costs  in    proceedings   before    judges  and 
niajristrates.    l»08-'9,  c.  17«,  sub  chap.  2,  s.  40. 

In  all  cases  of  criminal  complaints  before  justices  of 
the  supreme  court,  judges  of  the  superior  and  criminal 
courts,  jiistices  of  the  peace  and  other  magistrates  hav- 
ing jurisdiction  of  such  complaints,  the  olKcers  entitled 

iT  u  .V^^^^'l^..  ^^f  1°''  ^^^""^g  °^'  executing  process, 
s^ll  not  be  entitled  to  demand  them  in  advance  Such 
othcers  shall  indorse  the  amounts  of  their  respective  fees 
on  every  process  issued  or  executed  by  them,  and  return 
the  same  to  the  court  to  which  it  is  returnable. 

State  V.  Colbert,  75—368. 

Sec.  1174.  Persons  to  be  imprisoned  in  county  ij»il-  ex- 
ception as  to  a  sheritr.    K.  c,  c.  35,  s.  3.    5  Men'  IV 

C.   lO.  Xicu.  iv. 

No  person  shall  be  imprisoned  by  any  judge,  court,  jus- 
tice of  the  peace,  or  other  peace  officer,  except  in  the 
comnionjiil  of  the  county:  Provided,  that  whenever 
the  sheriff  of  any  county  shall  be  imprisoned,  he  may 
be  imprisoned  in  the  jail  of  any  adjoining  county. 

Sec.  1175.  No  person  to  be  arrested  on  a  presentment 
nor  tried,  except  on  indictment.  It.  C.  c  35  s  <t 
1797,  c.  474,  s.  3.     1879,  c.  IL'.  oo,   s.  o. 

No  person  shall  be  arrested  on  a  presentment  of  the 
grand  jury,  or  put  on  trial  before  any  court,  but  on  in- 
dictment found  by  the  grand  jury. 

atate  V.  Cain,  1  Uawks,  353;  State  v.  Koberts.  3  D.  &  B  540-  State  v 
Allen,  83-680;  State  v.  Uines.  84-810;  State  v.  Watson,  86-634-  State 
T.  Powell,  86 — 640. 

Sec.  117G.  Names  of  witnesses  and  grand  jnrors  to  be 
indorsed  on  presentment.  B.  C,  c.  35,  s.  7  1707 
c.  474,  s.  li.  -■^•^i. 

When  a  presentment  shall  be  made  of  any  offence  bv 
a  grand  jury,  upon  the  knowledge  of  any  of  theii-  body 
or  upon  the  testimony  of  witnesses,  the  names  of  such 
grand  jurors  and  witnesses  shall  be  indorsed  thereon 

state  V.  Allen,  83—680. 

Sec.  1177.  Indictments  for  misdemeanors  to  be  com- 
menced  in  two  years,  exceptions  thereto.  R.  C  c 
35,  s.  8.     1820,  c.  11.  ' 

Ail  misdemeanors,  except  the  offences  of  periurv 
forgery,  malicious  mischief,  and  other  malicious  mis- 
demeanors, deceit,  and   the  offence  of  being  accessory 


Chap.  26.]      CEIMINAL  PEOCEEDINGS.  469 

after  the.  fact,  now  made  a  misdemeanor,  shall  be  pre- 
sented or  found  by  the  grand  jury  within  two  years  after 
the  commission  of  the  same,  and  not  afterwards:  Pro- 
vided, that  in  case  any  of  the  said  misdemeanors,  hereby 
required  to  be  prosecuted  within  two  years,  shall  have 
been  committed  in  a  secret  manner,  the  same  may  be 
prosecuted  within  two  years  after  the  discovery  of  the 
offender:  Provided  Jurther,  that  if  any  indictment  found 
within  that  time  shall  be  defective,  so  that  no  judgment 
can  be  given  thereon,  another  prosecution  may  be 
instituted  for  the  same  offence,  within  one  year  after  the 
first  shall  have  been  abandoned  by  the  state. 

State  V.  Tomlinson,  3  Ired.,  32;  State  v.  Cox,  6  Ired.,  440;  State  v. 
Watts,  10  Ired.,  3t)9;  State  v.  Christianbury,  Busb.,  46;  Stale  v.  Hailey 
6  Jon.,  42. 

Sec.  11 78.  Criminal  proceedings  to  issue  and  be  return- 
able at  any  time;  proceedings  as  heretofore.  K.  C, 
c.  35,  s.  1*.     1777,  c.  116,  s.  15. 

All  process,  warrants  and  precepts,  issued  by  any 
judge  or  justice  of  the  peace,  or  clerk  of  any  court,  on 
any  criminal  prosecution,  may  issue  at  any  time,  and  be 
made  returnable  to  any  day  of  the  tei  m  of  the  court,  to 
which  such  warrant,  process,  or  precept  is  returnable. 

Sec.  1179.  Sheriff  to  indorse  on  process  and  subpoenas 
day  of  receipt  and  execution.  K.  C,  c.  35,  s.  10. 
1850,  c.  57. 

Every  sheriff  shall  indorse  on  all  process  and  subpoenas 
issuing  in  criminal  cases,  whether  for  the  state  or  defend- 
ant, the  day  when  such  process  and  subpoenas  came  to 
band,  and  also  the  day  of  their  execution;  and  on  failure 
of  any  sheriff  to  perform  either  of  said  duties,  he  shall 
forfeit  and  pay  the  sum  of  ten  dollars  for  every  case  of 
neglect,  to  be  recovered  for  the  use  of  the  state,  in  the 
same  manner  as  forfeitures  are  recovered  against  sheriffs 
by  parties  in  civil  suits,  for  failure  to  make  due  return  of 
process  delivered  to  them. 

Sec.  1180.  Sheriff  to  take  bail  in  bailable  offences;  not 
to  become  baU  himself.  K.  C,  c.  35,  s,  11.  1797, 
c.  474,  s.  4. 

When  any  sheriff  or  his  deputy  shall  arrest  the  body 
of  any  person,  in  consequence  of  the  writ  of  capias 
issued  to  him  by  the  clei  k  of  a  court  of  record  on  an 
indictment  found,  the  said  sheriff  or  deputy,  if  the  crime 
is   bailable,    shall   recognize    the    offender,    and    take 


470  CRIMINAL  PROCEEDINGS.      [Chap.  26. 

sufficient  bail  in  the  nature  of  a  recognizance  for  his 
X,.T^  ^\V\'  ''''^'*  succeeding  court  of  the  countv 
where  he  ought  to  answer,  which  recognizance  shall  be 
returned  with  the  capias;  and  the  sheriff  shall  in  no 
case  become  bail  himself. 

^^''ss^?^*'/^""'^*  ***  ''"^^  ^^"  pending  appeal.    K.  C,  c. 

When  any  person  convicted  of  a  misdemeanor,  and 
Sow^'Sin^  the  court,    shall  appeal,  the  court  sha 
allow  such  person  to  give  bail  pending  appeal. 

Sec.  1182.  The  accused  aUowed  counsel.  K.  C.  c  35  s 
13.    1777,  c.  115,  s.  86.  '    ' 

.n^+T.!??®'"'"'''  3p™se<3  of  any  crime  whatsoever,  shall  be 
f"  his  defe^cT^     '"^        matters  which  maybe  necessary 
State  V.  Collins,  70—241;  State  v.  Sjkes.  79—618. 

Sec.  1183.  Formal  objections  or  stay  of  judgment  shall 
not  quash  indictments,  informations  and  impeach- 
ments,  R.  C,  c.  35,  s.  14.  37  Hen.  VIII,  c.  8.  1784 
e.  210,s.2.    1811,c.809.  ' 

Every  criminal  proceeding  by  warrant,  indictment,  in- 
formation, or  impeachment,  shall  be  sufficient  in  form 
tor  all  intents  and  purposes,  if  it  express  the  charge 
against  the  defendant  in  a  plain,  intelligible,  and  exphcit 
manner;  and  the  same  shall  not  be  quashed  nor  the 
judgment  thereon  stayed,  by  reason  of  any  informalitv 
or  refinement,  if  in  the  bill  or  proceeding,  sufficient 
matter  appears  to  enable  the  court  to  proceed  to  iuda-- 
ment.  j  "s 

State  V.  Carter,  Conf.  R.,  310;  State  v.  Newmans,  2  C.  L.  Kepos    74  (171)- 
State  V.  Cherry,  3  Mur.,  7;  State  v.  Sexton,  3  Hawks,  184;  State  v   Brown' 
1  Dev.,  187;  State  v.  Pool,  2  Dev.,  203;  State  v.  Moses,  2  Dev     4,-,3-  Slate 
V.  Fore,  1  Ired.,  378;  State  v.  Gallion,  2  Ired.,  372;  State  v.  Lane   4  Ired 
113;  Stale  v.  Trilmlt,  10  Ired.,  151;  State  v.  Noblctt,  2  Jon.,  418-'  State  v' 
Boon,  4  Jon.,  463;  State  v.  Perry,  5  Jon..  253;  State  v.  Morgan    Winst 
248;  St.ate  v.  Beatty,  Phil.,  ,53;  State  v.  Smith,  03—234;  State  v.  Bell,  65— 
313;  State  v.  Pliclps,  65—450;  Slate  v.  Parker,  65—4.53;  State  v.  Sprinkle 
65—463;   State  v.    Wise,    66-120;    State   v.     Slatoc,    66—640;    State  v 
Johnson,  67—55;  State  v.  Wise,  67—281;  State  v.  Purdie,  67—336;  State 
V.  Wilson,  67—4,56;  State  v.  Henderson,  68-348;  State  v.  Evan-^  69-40- 
Statev.  Davis,  69-495;  State  v.  Simons,  70-,336;  State  v.  Rinehart,  75- 
58;  State  V.  Underwood,  77— ,503;  State  v.  Davis,  80—384;  State  v.  Reel, 
80-443;  State  V.  Joyner,  81— 5.34;  State  v.  Williamson,  81—540;  State  v' 
Davis,  84—787;  Stale  v.  Davis,  87—514;  State  v.  Walker,  87-541 


Chap.  26.]     CRIMINAL  PROCEEDINGS.  471 

Sec.  1184.  Substance  of  proceedings  to  be  set  forth  in  in- 
dictments, &c.    K.  C,  c.  35,  s.  15. 

In  every  indictment,  information,  or  impeachment  in 
which  by  the  common  law,  it  may  be  necessary  to  set 
forth  at  length  the  judicial  proceedings  had  m  any  case 
then  or  formerly  pending  in  any  court,  civil  or  military, 
or  before  any  iusUce  of  the  peace,  it  shall  be  sufficient  to 
set  forth  the  substance  only  of  said  proceedings,  or  the 
substance  of  such  part  thereof  as  make,  or  help  to  make, 
the  offence  prosecuted. 

State  V.  Haney,  67-467;  State  v.  Evans,  69-40;  State  v.  Davis,  69- 
495;  State  v.  Simons,  70—336. 

Sec    1185.  Indictment  for  perjury;  what  to  set  forth.    B. 
C,  c.35,s.  16.     1842,  c.  49,  s.  1. 

In  every  indictment  for  wilful  and  corrupt  perjury,  it 
shall  be  sufficient  to  set  forth  the  substance  of  the  offence 
charged  upon  the  defendant,  and  by  what  court,  or 
before  whom,  the  oath  was  taken,  (averring  such  court 
or  person  to  have  competent  authority  to  administer  the 
same  )  together  with  the  proper  averments  to  falsity  the 
matter  wherein  the  perjury  is  assigned,  without  setting 
forth  the  bill,  answer,  information,  indictment,  declara- 
tion or  any  part  of  any  record  or  proceedings,  either  m 
law  or  equity,  other  than  aforesaid,  and  without  settmg 
forth  the  commission  or  authority  of  the  court  or  person 
before  whom  the  perjury  was  committed. 

State  V  BrysoD,  1  C.  L.  Rcpos. ,  503 ;  Stale  v.  Ammons,  3  Mur.,  135 ;  State 
V  Gallimoi-e  Sired.,  372;  State  v.  Bell,  Sired.,  506;  State  v.  Hoyle,  6Ired..  1 ; 
Stole  V  Harvell,  4  Jon.,  55;  Stote  v.  Davis,  69-495;  State  v.  Quick, 
73-241;  State  V.  Davis,  84-787;  State  v.  Kniglit,  84—789;  State  v.  Col- 
lins, 85—511. 

Sec   1186.  Indictment  for  .subornation  of  perjury;  what 
to  set  forth.    K.  C,  c.  35,  s.  17.     1842,  c.  49,  s.  2. 

In  every  indictment  for  subornation  of  perjury,  or  for 
corrupt  bargaining  or  contracting  witli  others  to  commit 
wilful  and  corrupt  perjury,  it  shall  be  sufficient  to  set 
forth  the  substance  of  the  offence  charged  upon  the  de- 
fendant, without  setting  forth  the  bill,  answer,  informa- 
tion indictment,  declaration  or  any  part  of  any  record  or 
proceedings  and  without  setting  forth  the  commission  or 
authority  of  the  court  or  person  before  whom  the  per- 
jury was  committed  or  was  agreed  or  promised  to  be  com- 
mitted. 


472  CEIMINAL  PEOCEEDINGS.      [Chap.  26. 

Sec.  1187.  Indictment  for  second  offence;  how  first  con- 
viction to  be  stated.    R.  C.,  c.  35,  s.  18. 

In  any  iudictment  for  an  offence  which!  on  the  second 
conviction  thereof,  is  punished  with  other  or  greater  pun 
if  cT?  .f^'i'l,''"  *^^  ^:^*  conviction,  it  shall  be  sufficient 
to  state  that  the  offender  was,  at  a  certain  time  and  place 
convicted  thereof,  without  otherwise  describing  the  pre- 
vious offence;  and  a  transcript  of  the  record  of  the  first 
conviction,  duly  certified,  shall,  upon  proof  of  the  identity 
ot  the  person  ot  the  offender,  be  sufficient  evidence  of  the 
first  conviction. 

Sec.  1188.  Indictment;  how  stated,  when  ownership  of 
property  is  held  in  common.    R.  C.,  c.  35,  s.  19. 

In  any  indictment  wherein  it  shall  be  necessary  to 
state  the  ownership  of  any  property  whatsoever,  whether 
real  or  personal,  which  shall  belong  to,  or  be  in  the  pos- 
ession  of  more  than  one  person,  whether  such  persons 
be  partners  ni  trade,  joint-tenants  or  tenants  in  common. 
It  shall  be  sufficient  to  name  one  of  such  persons,  and  to 
state  such  property  to  belong  to  the  person  so  named, 
and  another  or  others,  as  the  case  may  be:  and  whenever 
m  any  such  indictment,  it  shall  be  necessary  to  mention' 
tor  any  purpose  whatsoever,  any  partners,  joint  tenants 
or  tenants  in  common,  it  shall  be  sufficient  to  describe 
them  in  the  manner  aforesaid;  and  this  provision  shaU 
extend  to  ail  joint  stock  companies  and  trustees. 

Slate  V.  Harper,  64-129;  Stale  v.   Patterson,   68-293;  State  v  Capps 
71—93;  State  v.  Hill,  79— 606;  State  v.  Edwards,  86—666.  '  ' 

Sec.  1189.  Indictment,  certain  defects  of,  not  to  vitiate. 
R.  C  c.  35,  s.  30. 

No  judgment  upon  any  indictment  for  felony  or  mis- 
de'meanoi-,  whether  after  verdict,  or  by  confession,  or 
otherwise,  shall  be  stayed,  or  reversed  for  the  want  of 
the  averment  of  any  matter  unnecessary  to  be  proved 
nor  tor  omission  of  the  words  "  as  ajipears  by  the  record  " 
or  of  the  words  "with  force  and  arms,"  nor  for 
the  insertion  of  the  words  "  against  the  form  of  the 
statutes  instead  of  the  words  "against  the  form  of 
the  statute,  '  or  vice  versa ;  nor  for  omission  of  the 
words  'against  the  form  of  the  statute"  or  "against 
the  form  of  the  statutes."  nor  for  omitting  to  state 
the  time  at  which  the  offence  was  committed,  in  any 
case  where  tmie  is  not  of  the  essence  of  the  offence 
nor  for  stating  the  time  impeifectlv,  nor  for  stating  the 
ottence  to  have  been  committed  on  a  day  subsequent  to 


Chap.  26.]     CRIMINAL  PEOCEEDINGS.  473 

the  finding  of  the  indictment,  or  on  an  impossible  day,  or 
on  a  day  that  never  liaopened;  nor  for  want  of  a  proper 
and  perfect  venue,  when  the  court  shall  appear  by  tHe 
indictment  to  have  had  jurisdiction  of  the  offence. 

Slale  V.  Roacli,  2  Hay.,  353;  State  v.  Slieplierd,  8  Ircd.,  195;  Slate  v. 
Aberuathy,  Busb.,  428;  State  v.  Noblett,  2  Jon.,  418;  State  v.  Storkey, 
63-7-  State  v.  Caudle,  63-30;  State  v.  Smith,  63-334;  Slate  v.  Wise, 
66-120;  State  v.  Purdie,  67-336;  Slate  v.  Haney,  67-467;  Slate  v. 
Simons  '  70-330;  Slate  v.  Davis,  80-384;  State  v.  Jones,  80-415;  State  v. 
Parker,  81—531;  Slate  v.  Joyner,  81-534;  Slale  v.  Taylor,  83—601;  State 
V.  Lowder,  85—564;  Slate  v.  Morgan,  85—581. 

Sec.  1 190.  In  indictments  for  larceny  of  money,  treasury 
notes  or  bank  notes,  sufficient  to  describe  sucli  money 
or  notes  simply  as  money  without  specifying  tlie  kind. 
187G-'7,  c.  68. 

In  every  indictment  in  which  it  shall  be  necessary  to 
make  any  averment  as  to  the  larceny  of  any  monev,  or 
United  States  treasury  note,  or  any  note  of  any  bank 
whatsoever,  it  shall  be  sufficient  to  describe  such  money, 
or  treasury  note,  or  bank  note,  simply  as  money,  without 
specifying  any  particular  coin,  or  treasury  nole,  or  bank 
note-  and  such  allegation,  so  far  as  regards  the  descrip- 
tion of  the  property,  shall  be  sustained  by  proof  of  any 
amount  of  coin,  or  treasury  note,  or  bank  note,  although 
the  particular  species  of  coin,  of  which  such  amount  was 
composed,  or  the  particular  nature  of  the  treasury  note, 
or  bank  note,  shall  not  be  proven. 

State  V.  Collins,  73—144;  State  v.  Reese,  83-637;  State  v.  Reynolds, 
87—544. 

Sec.  1191.  Intent  to  defraud,  what  statement  and  proof 
sufficient;    in    same    indictment,   defendant   may    be 
charged  with  counts  for  receiving  stolen  goods  and 
with  larceny.    K.  C,  c.  35,  ss.  21,  23.    1852,  c.  87,  s. 
2.     1874-'5,  c.  62. 
In  any  case,  where  an  intent  to  defraud  is  required  to 
constitute  the  offence  of  forgery,  or  any  other  offence 
whatever,  it  shall  be  sufficient  to  allege,  m  the  indict- 
ment, an  intent  to  defraud,  without  naming  therein  the 
particular  person  or  body  corporate  intended  to  be  de- 
frauded; and  on  the  trial  of  such  indictment,  it  shall  be 
sufficient,  and  shall  not  be  deemed  a  variance,  if  there 
appear  to  be  an  intent  to  defraud  the  United  States,  or 
any  state,  county,  city,  town,  or  parish,  or  body  corpor- 
ate or  any  pubUc  officer,  in  his  official  capacity,  or  any 
co-partnership  or  member  thereof,  or  any  particular  per- 


474  CRIMINAL  PROCEEDINGS.      [Chap.  26. 

son.  The  defendant  may  be  charged  in  the  same  indict- 
ment m  several  counts  with  the  separate  offences  of  re- 
ceivmg  stolen  goods,  knowing  them  to  be  stolen,  and 
larceny. 

State  V.  Ives.  13  Ired.,  339;  State  v.  Beatty,  Phil..  53;  State  v  Tisdale 
Phil.,  230;  State  v.  Bailey,  73-70;  State  v.  Leak,  80-403;  State  v  Law' 
rence,  81—522;  State  v.  Morrison,  85—561;  State  v.  Hastings,  86—596. 

Sec.   1192.  Party  whose    name    is   forged   a    competent 
witness.    R.  C,  c.  35,  s.  22. 

No  person  shall  be  deemed  to  be  an  incompetent  wit- 
ness by  reason  of  any  interest  which  such  person  may 
have,  or  be  supposed  to  have  in  respect  to  any  deed 
writing,  instrument,  or  other  matter  whatsoever,  in  sup- 
port of  any  prosecution,  wherein  shall  be  questioned  the 
fact  of  forging  such  deed,  writing,  instrument,  or  other 
matter  whatsoever,  or  the  fact  of  uttering,  showing  forth 
m  evidence,  or  disposing  thereof,  knowing  the  same  to 
be  forged. 

Sec.  1193.  Crimes  committed  on  waters  dividing  counties, 
where  tried.    R.  C.,  c.  35,  s.  24. 

When  any  offence  shall  be  committed  on  any  water  or 
watercourse,  whether  at  high  or  low  water,  which  said 
water  or  watercourse,  or  the  sides  or  shores  thereof,  shall 
divide  counties,  such  offence  may  be  dealt  with,  inquired 
of,  tried  and  determined,  and  punished  at  the  discretion 
of  the  court,  in  either  of  the  two  counties  which  may  be 
nearest  to  the  place  where  the  offence  was  committed. 

Sec.  1194.  Improper  venue  to  be  taken  advantage  of  by 
plea  in  abatement;  on  issue  joined,  what  judgment 
rendered  in  misdemeanors,  what  in  felonies.  R  C  c 
35,  s.  25.  '    * 

And  because  the  boundaries  of  many  counties  are 
either  undetermined,  or  unknown,  by  reason  whereof 
high  offences  go  unpunished;  therefore,  for  the  more 
effectual  prosecution  of  offences  committed  on  land 
near  the  boundaries  of  counties,  in  the  prosecution  of  all 
offences,  it  shall  be  deemed  and  taken  as  true,  that  the 
offence  was  committed  in  the  county,  in  which  by  the 
indictment  it  is  alleged  to  have  taken  place,  unless  the 
defendant  shall  deny  the  same  by  plea  in  abatement,  the 
truth  whereof  shall  be  duly  verified  on  oath,  or  other- 
wise, both  as  to  substance  and  fact,  wherein  shall  be  set 
forth  the  proper  county  in  wliich  the  supposed  offence, 
if  any,  was  committed:  whereupon  the  court  may,  on 


CHAP.  26.]      CRIMINAL  PEOCEEDINGS.  ^75 

motion  of  the  state,  commit  the  defendant,  who  may 
enter  into  recognizance,  as  in  other  cases  to  answer  the 
offence  in  the  county  averred  by  his  plea  to  be  the  proper 
county;  and,  on  his  prosecution  m  that  county  it  shaU 
be  deemed,  conclusively,  to  be  the  proper  county.  But 
if  the  state,  upon  the  plea  aforesaid  will  join  issue,  and 
the  matter  be  found  for  the  defendant  he  shall  be  re- 
quired to  enter  into  recognizance  as  m  othei; cases  to  an- 
swer the  offence  in  the  county  averred  by  his  plea  to  be 
the  proper  countv,  provided  the  offence  be  bailable;  and, 
if  not  bailable,  he  shall  be  committed  for  trial  in  the 
county;  and,  if  it  be  found  for  the  state,  the  court  in  all 
offenc4s  or  misdemeanors  shall  proceed  to  pronounce 
iudgment  against  the  defendant,  as  upon  conviction; 
and!  in  all  cases  of  felony,  the  defendant  shall  be  at 
liberty  to  plead  to  the  indictment,  and  be  tried  on  his 
plea  of  not  guilty. 

State  V.  Adams.  Mar.,  30(21);  State  v.  Outerbridge.  82-617;  State  v. 
Mitchell,  83—674. 

Sec  1 195.  In  indictment  for  libel,  defendant  may  give  the 
truth  in  evidence.    K.  C,  c.  35,  s.  26.    1803,  c.  632. 

Every  defendant  who  shall  be  charged  by  mdictnient 
with  the  publication  of  a  hbel  may  prove  on  the  trial  for 
the  same  the  truth  of  the  facts  alleged  in  the  indictment; 
and  if  it  shall  appear  to  the  satisfaction  of  the  .lury  that 
the  facts  are  true,  the  defendant  shall  be  acquitted  ot  the 
charge. 

Sec  1196.  In  cases  where  an  assault  followed  by  death  in 
knother  county,  indictment  to  be  found  in  the  county 
where  assault  was  made.    K.  C,  c.  35,  s.  27.     1831,  c. 

22,  s.  1. 
In  all  cases  of  felonious  homicide,  when  the  assault 
shall  have  been  made  in  one  county  within  the  state,  and 
the  person  assaulted  shall  die  in  any  other  county  thereof, 
the  offender  shall  be  indicted  and  punished  for  the  crime 
in  the  county  wherein  the  assault  was  made. 

Sec.  1197.  Assault  in  this  state  and  death  out  of  it,  trial 
to  be  held  in  this  state.  K.  C,  c.  35,  s.  28.  1831,  c. 
22,  s.  2. 

In  all  cases  of  felonious  homicide,  when  the  assault 
shall  have  been  made  within  this  state,  and  the  person 
assaulted  shall  die  without  the  limits  thereof,  the  offender 
shall  be  indicted  and  punished  for  the  crime  in  the  county 
where  the  assault  was  made,  in  the  same  manner,  to  all 


476  CRIMINAL  PROCEEDINGS.      [Chap.  26. 

intents  and  purposes  as  if  the  person  assaulted  had  died 
within  the  limits  of  this  state. 

State  V.  Fisher,  3  lied.,  Ill;  State  v.  Dunkley,  3  Ired.,  110. 

Sec.  1198.  Plea  of  "  not  guilty "  entered  for   defendant 
who  stands  mute.  R.  C,  c.  35,  s,  29.  K.  S.,  c.  35,  s.  16. 

If  any  person,  beina;  arraigned  upon  or  charged  in  any 
indictment  for  any  crime,  shall  stand  mute  of  malice  or 
will  not  answer  directly  to  the  indictment,  the  court 
shall  order  the  plea  of  "not  guilty"  to  be  entered  on 
behalf  of  such  person;  and  the  plea  so  entered  shall  have 
the  same  force  and  effect  as  if  such  person  had  pleaded 
the  same. 

State  V.  Harris,  8  Jon.,  136;  State  v.  Pollard,  83—598. 

Sec.   1199.  In  capital  cases,    defendants  may  challenge 

twenty-three  jurors,  in  other  cases  four;  allowed  aid  of 

counsel.    K.  C,  c.  35,  s.  32.    1871-'2,  c.  39.    R.  S.    c 

35,  KS.  19,  21.    1777,  c.   115,  .s.  85.    1812,  c.  833. 

1801,  c,  592,  s.  1 ;   1826,  c.  9.    22  Hen.  VIIl,  c.  14. 

Every  person  on  joint  or  several  trial  for  his  life,  may 

make  a  peremptory  challenge  of  twenty-three  jurors  and 

no  more;  and  in  all  joint  or  several  trials  for  crimes  and 

misdemeanors,  other  tnan  capital,  every  person  on  trial 

shall  have  the  right  of  challenging  peremptorily,  and 

without  showing  cause,  four  jurors  and  no  more.     And 

to  enable  defendants  to  exercise  this  right,  the  clerk  in 

all  such  trials  shall  read  over  the  names  of  the  jurors  on 

the  panel,  in  the  presence  and  hearing  of  the  defendants 

and  their  counsel  before  the  jury  shall  be  impaneled  to 

try  the  issue;  and  in  all  trials  whether  for  capital  or 

inferior  offences,  the  defendants  may  have  the  aid  and 

assistance  of  counsel  in  making  challenges  to  the  juiy, 

and  the  judge  or  other  presiding  officer  of  the  court  shall 

decide  all  questions  as  to  the  competency  of  jurors. 

State  V.  Benton,  2  D.  &  B.,  196;  State  v.  Morgan,  3  D.  &  B.,  .348;  State  v. 
Smith,  2  lied.,  403;  State  v.  Creasman.  lOIied.,  395;  State  v.  Dove,  10  Ired., 
469;  State  v.  Cad  well,  1  Jon.,  289;  State  v.  Patrick,  3  Jon.,  443;  State  v.' 
Davis,  80—384. 

Sec.  1200.  In  capital  cases  state  may  challenge  four 
jurors,  in  others  two.  R.  C,  c.  36,  s.  33.  33  Edw.  I, 
Stat.  4.     1827,  c.  10. 

In  all  capital  cases,  the  prosecuting  officer  on  behalf  of 
the  state  shall  have  the  right  of  challenging  peremptorily 
four  jurors:  Provided,  said  challenge  is  made  before  the 
juror  is  tendered  to  the  prisoner;  and  if  he  will  challenge 


CHAP.  26.]      CRIMINAL  PROCEEDINGS.  477 

more  than  four  jurors  he  shall  assign  for  his  challenge  a 
cause  certam:  and  in  all  other  cases  of  a  criminal  nature, 
a  challenge  of  two  jurors  shall  be  allowed  in  behalt  ot  the 
state,  and  challenges  also  for  a  cause  certam;  and  in  ail 
cases  of  cliaUenge  for  cause  certain,  the  same  shaU  be  m- 
quired  of  according  to  the  custom  of  the  court. 

Sec.  1201.  On  conviction  for  robbing  or  stealing,  tbe 
person  robbed  is  entitled  to  the  restitution  of  liis 
property.    K.  C,  c.  35,  s.  34.    21  Hen.  VIII,  c.  11. 

Upon  the  conviction  of  any  felon  for  robbing  or  steal- 
ing any  money,  goods,  chattels,  or  other  estate  of  any 
description  whatever,  the  person  from  whom  such  goods, 
money,  chattels  or  other  estate  were  robbed  or  stolen, 
shall  be  entitled  to  restitution  thereof;  and  the  court  may 
award  restitution  of  the  articles  so  robbed  or  stolen,  and 
make  all  such  orders  and  issue  such  writs  of  restitution 
or  otherwise,  as  may  be  necessary  for  that  purpose. 

Sec.  1202.  New  trial  to  defendants.  K.  C,  c.  35,  s.  35. 
1815,  c.  895,  amended. 

The  courts  may  grant  new  trials  in  criminal  cases  when 
the  defendant  is  found  guilty,  under  the  same  rules  and 
regulations  as  in  civil  cases. 

state  V.  Mooney,  74-98;  State  v.  Grady,  86-643;  State  v.  Bndgers, 
87—562. 

Sec.  1203.  Superior  and  inferior  courts  to  set  a  day  for 
the  trial  of  crimes;  witnesses  not  to  attend  till  such 
day.  K.  C,  c.  35,  s.  36.  1822,  c.  1133,  ss.  2,  3,  4.  C. 
C.  P.,  s.  229. 

The  courts  shall  appoint  a  special  day  in  their  respective 
terms,  on  which  the  business  of  the  state  shall  be  taken 
up  and  the  court  may  proceed  therewith  till  the  whole  is 
finished;  and  no  witness  recognized  or  summoned  to 
attend  on  indictment  found  shall  be  entitled  to  cotiipen- 
sation  for  attending  previous  to  the  day  so  appointed: 
Provided,  that  in  capital  cases  witnesses  and  other 
persons  may  be  required  on  the  day  precedmg  the  day 
appointed  as  aforesaid;  and  the  clerk  of  the  court  in 
which  a  day  is  thus  appointed  shall  give  notice  thereof 
at  the  court  house  door  and  at  three  or  more  pubhc  places 
in  the  county,  and  shall  issue  subpoenas  and  take  recog- 
nizances for  attendance  on  such  day. 

Lewis  V.  Com'rs,74— 194. 


478  CEIMINAL  PEOCEEDINGS.      [Chap.  26. 

Sec.  1204.  Pay  of  witnesses  iu  state  cases;  court  to  direct 
the  prosecutor  to  pay  costs  in  certain  cases.    R.  C.  c 

?fcl,  c.  176^''**'  "'  ^^^'  '•  '•    '*^^'  "•  *»'  ^-  »2,^  S 

All  witnesses  summoned  or  recognized  in  behalf  of  the 
state  shal  be  allowed  the  same  pay  for  their  da  Ivattend! 
ance.  ferriage  and  mileage  as  is  allowed  to  witnesses  at- 
endmgmdvilsnits;  and%uch  fees  for  attendance  shal 
be  paid  by  the  defendant,  only  upon  conviction  confes- 
sion or  submission;  and  if  the  defendant  be  acquitted  on 
any  chai-ge  of  an  inferior  nature,  or  a  nolle  p^'osem}  be 

navth^.^^'f'-f'  ^^'t  '''''^  ^'^^"  ^^'-^erthe  prosecutor  So 
pay  the  costs,  if  such  prosecution  shall  appear  to  have  been 
frivolous  or  malicious;  but  if  tlie  court  shall  be  of  opin 
on  that  such  prosecution  was  neither  frivolous  nor  ma- 
hcious  and  a  greater  number  of  witnesses  have  been  sum- 
moned than  were,  in  the  opinion  of  the  court,  necessary 
to  support  the  charge  the  court  may,  nevertheless,  order 
the  prosecutor  to  pay  the  attendance  of  such  unnecessary 
spedS^eVest  ^^^'^'*'''*  "^^^  ^'^^^  summoned  at  his 

state  V.  Stewart  1 C.  L.  Repos.,  524;  State  v.  Lumbrick.  1  C.L.Rcpos.,  543; 

Ofhcev.  Gray,  3  C.L.  Repos.,  424;  State  v.  Cockcri.am,  1  Ired    381-  State 

V.   Lupton,  63-483;  State  v.  Darr,  63-516;  Lewis  v.   ComTs    74-19I 

fr''"^  "«,?■"''!;  ^^-'^'-  P'^g'-'^"  ^-  Com'rs.  75-120;  State  v.  Spencer." 

f  ai,     4?  ""c  ^™'''*'  ^^~^'^'  ^'^"^  ^-  Hugbes,  83-665;  State  v.  Nor- 
wood, 84—794;  State  v.  Owens,  87—565. 

Sec.  1205.  Judges  may  lessen  or  remit  recognizances  at 
any  tune.    R.  C,  c.  35,  s.  38.     1788,  c.  292  s.  1 

.J-?®  ^"fe  ""^-^^  ?iiperior,  criminal  and  the  presiding 
tS^ZmfJ'f  if'"^'  courts  may  hear  and  determinf 
the  petition  of  all  persons,  who  shall  conceive  they  merit 
relief  on  their  recognizances  forfeited;  and  may  lessen 
or  absolutely  remit  the  same,  and  do  all  and  anvthing 

^nfthP  wp  r  ^^'fl?^^"^  ^st  ^"d  right  and  consistent 
with  the  welfare  of  the  state  and  the  persons  praying 
such  relief,  as  well  before,  as  after  final  judgment  en- 
tered and  execution  awarded. 

State  V.  Moody,  74—73. 

Sec.  1206.  Clerk  to  refund  remitted  forfeitures  paid  into 
office.    K.  C,  c.  36,  s.  39.    1795,  c.  442,  s.  1. 

The  derk  of  the  superior,  criminal  or  inferior  courts 
on  the  remission  of  any  forfeited  recognizance  which  has 
been  paid  into  his  office,  shall  refaSd  the  same,  or  so 
much  thereof  as  shall  be  remitted. 

Moore  V.  Com'rs,  70—310;  State  v.  Moody,  74—73. 


Chap.  26.]      CRIMINAL  PEOCEEDINGS.  479 

Sec   1307.  County  treasurer  to  refund,  when  paid  to  him. 
R.  C,  c.  35,  s.  40.     1796,  c.  443,  s.  3. 

If  the  money  has  been  paid  to  the  county  treasurer, 
he  shall  refund  it  to  the  person  entitled  on  his  produc- 
ing an  attested  copy  of  the  record  from  the  clerk  of  the 
court,  certifying  that  such  recognizance  hath  been  reniit- 
ted  or  lessened,  signed  with  his  own  proper  name,  with 
the  seal  of  the  court  affixed  thereto. 

State  V.  Moody,  74—73. 

Sec.  1308.  Execution  not  to  issue  until  the  issuing  of  the 
notice.    K.  C,  c.  35,  s.  43.     1777.  c.  115,  s.  48. 

No  execution  shall  issue  upon  a  forfeited  recognizance, 
or  to  collect  a  fine  imposed  nisi,  until  a  notice  has  issued 
against  the  person  and  his  sureties,  who  has  forfeited  his 
recognizance  or  upon  whom  the  fine  has  been  imposed. 

State  V.  Mills,  3D.  &  B.,  553. 

Sec    1309.  Joint    notice   to  issue  on  forfeited   recogni- 
zances.   K.  C,  c.  35,  s.  44.     1813,  c.  836,  s.  1. 

When  any  recognizance,  acknowledged  by  a  principal 
and  sureties,  shall  be  forfeited  by  two  or  more  of  the 
]-ecognizors,  the  notice  issued  thereon  shall  be  jointly 
against  them  all,  designating  which  of  them  are  princi- 
pals and  which  sureties,  and  when  they  are  bound  m 
different  sums,  stating  the  amount  forfeited  by  each  one: 
and  the  clerk  shall  have  no  greater  fee  on  such  notice 
than  is  due  when  it  is  issued  against  one  defendant. 

Sec.  1310.  How   notices  executed.     K.  C,  c.  35,  s.  45. 
1813,  c.  836,  s.  3. 

All  notices  issuing  upon  forfeited  recognizances  shall 
be  executed  by  leaving  a  copy  with  each  of  the  defend- 
ants, or  at  his  present  place  of  abode.  And  m  case  he 
cannot  be  found,  and  has  no  known  place  of  abode,  and 
the  matter  be  returned,  then  a  notice  shall  issue,  and  on 
the  like  return,  the  same  shall  be  deemed  duly  served. 

Sec.  1311.  Convicted  person  must  pay  the  costs.    R.  C, 
c.  35,  s.  46. 

Every  person  convicted  of  an  offence,  or  confessing 
himself  guilty,  or  submitting  to  the  court,  shall  pay  the 
costs  of  prosecution. 

State  V.  Mooney,  74-98;  Lewis  v.  Com'rs,  74-194;  Neal  v.  Com'rs, 
85—430. 


480  CRIMINAL  PROCEEDINGS.      [Chap.  26. 

Sec.  1212.  Penalties  not  specially  given  may  be  recov- 
ered by  any  person  wbo  may  sue  lor  same.  K.  C,  c. 
35,  s.  47. 

Where  a  penalty  may  be  imposed  by  any  law  passed  or 
hereafter  to  be  passed,  and  it  shall  not  be  provided  to 
what  person  the  penalty  is  given,  it  may  be  recovei-ed 
by  any  one  who  will  sue  for  the  same,  and  for  his  own 
use. 

Noi-man  t.  Dunbar,  8  Jon.,  819;  Duncan  v.  Philpot,  64 — 479. 

Sec.  1213.  Suits  on  penalties,  unless  otherwise  provided, 
may  be  brought  in  name  of  the  state.    R.  C.  c.  35,  s. 

48. 

Whenever  any  penalty  shall  be  given  by  statute,  and 
it  is  not  prescribed  in  whose  name  suit  therefor  may  be 
commenced,  the  same  shall  be  brought  in  the  name  of 
the  state. 

Caroon  v.  Rogers,  6  Jon.,  246;  Norman  v.  Dunbar,  8  Jon.,  319;  Duncan 
V.  PMlpot,  64 — 479. 

Sec.  1214.  Prosecuting  attorneys  to  direct  post  mortem 
examinations.    R,  C,  c.  35,  s.  41). 

In  all  cases  of  homicide,  any  officer  prosecuting  for 
the  state  may,  at  any  time,  direct  a  post  mortem  exami- 
nation of  the  deceased  to  be  made  by  one  or  more 
physicians  to  be  summoned  for  the  purpose;  and  the 
physicians  shall  be  paid  a  reasonable  compensation  for 
such  examination,  the  amount  to  be  determined  by  the 
court  and  taxed  in  the  costs,  and  if  not  collected  out  of 
the  defendant,  the  same  shall  be  paid  by  the  county. 

Sec.  1215.  Persons  participating  in  unlawful  gaming  com- 
pelled to  testify  of  the  gaming;  not  to  be  prosecuted 
therefor.    R.  C,  c.  35,  s.  50. 

No  person  shall  be  excused,  on  any  prosecution,  from 
testifying  touching  any  unlawful  gaming  done  by  him- 
self or  others;  but  no  discovery,  made  by  the  witness 
upon  such  examination,  shall  be  used  against  him,  in  any 
penal  or  criminal  prosecution,  and  he  shall  be  altogether 
pardoned  of  the  offence  so  done,  or  participated  in  by 

State  V.  Qailor,  71—88. 

Sec.  1210.  Officers  who  are  authorized  to  keep  the  peace. 
1868-'9,  c.  178,  sub  chap.  2,  s.  1. 

The  following  magistrates  shall  have  power  to  cause  to 
be  kept  all  the  laws  made  for  the  preservation  of  the 


Chap.  26.]     CRIMINAL  PEOCEEDINGS.  481 

public  peace,  and  in  execution  of  that  power  to  requii-e 
persons  to  give  security  to  keep  the  peace,  in  the  manner 
provided  in  this  chapter,  namely:  The  chief  justice  and 
associate  justices  of  the  supreme  court,  the  judges  of  the 
superior  and  criminal  courts,  and  of  any  special  courts 
which  may  be  hereafter  created,  the  justices  of  the  peace, 
the  mayors  or  other  chief  officers  of  ail  cities  and  towns. 

Sec.  1217.  Duty  of  magistrate  on  complaint  being  made. 
1868-'9,  c.  178,  sub  chap.  2,  s.  2. 

Whenever  complaint  shall  be  made  in  writing,  and 
upon  oath  to  any  such  magistrate  that  any  person  has 
threatened  to  commit  any  offence  against  the  person  or 
property  of  another,  it  shall  be  the  duty  of  such  magis- 
trate to  examine  such  complainant  and  any  witnesses 
who  may  be  produced,  on  oath,  to  reduce  such  examina- 
tion to  writing,  and  to  cause  the  same  to  be  subscribed  by 
the  parties  so  examined. 

Sec.  1218.  When  warrant  to  issue.    1868-'9,  c.  178,  sub 
chap.  2,  s.  3. 

If  it  shall  appear  from  such  examination  that  there  is 
just  reason  to  fear  the  commission  of  any  such  offence 
by  the  person  complained  of,  it  shall  be  the  duty  of  the 
magistrate  to  issue  a  warrant  under  his  hand,  with  or 
without  a  seal,  reciting  the  complaint,  and  commanding 
the  officer  to  whom  it  is  directed  forthwith  to  apprehend 
the  person  so  complained  of,  and  bring  him  before  such 
magistrate  or  some  other  magistrate  authorized  to  issue 
such  warrant. 


Sec.    1219.  To   whom   the   warrant    shall    be    directed. 
1868-'9.  c.  178,  sub  chap.  2,  s.  4. 

The  warrant  shall  be  directed  to  the  sheriff,  coroner  or 
any  constable,  each  of  whom  shall  have  power  to  execute 
the  same  within  his  county;  and  if  no  sheriff,  coroner  or 
constable  can  conveniently  be  found,  the  warrant  may 
be  directed  to  any  person  whatever,  who  shall  have 
power  to  execute  the  same  within  the  county  in  which  it 
is  issued.  No  justice  of  the  peace,  or  mayor,  or  other 
chief  officer  of  any  city  or  town  shall  direct  his  warrant 
to  any  officer  outside  of  the  county  of  said  justice  or 
chief  officer. 


483  CEIMINAL  PEOCEEDINGS.      [Chap.  26. 

Sec.  1220.  Duty  of  magistrate  «u  return  of  warrant. 
18e8-'9,  c.  1  78,  sub  thai).  2,  s.  6. 

Upon  the  peisou  complained  of  l^eing  brought  befoi'e 
the  magistrate,  he  may  be  required  to  enter  into  a  re- 
cognizance, payable  to  the  state  of  North  Carolina,  in 
such  sum  not  exceeding  one  thousand  dollars,  as  such 
magistrate  shall  direct,  with  one  or  more  sufficient  sure- 
ties, to  appear  at  the  next  term  of  the  court  having  juris- 
diction in  the  county  in  which  the  offence  is  charged  to 
have  been  committed,  and  not  to  depart  the  same  without 
leave,  and  in  the  meanwhile  to  keep  the  peace  and  be  of 
good  behaviour  towards  all  the  people  of  this  state, 
and  particularly  towards  the  person  requiring  such 
security. 

Sec.  1221.  When  party  complained  of  discharged  and 
when  imprisoned.     1868-'9,  c.  178,  sub  chap.  2,  s.  6. 

If  such  recognizance  shall  be  given,  the  pariy  com- 
plained of  shall  be  discharged;  if  such  person  shall  fail 
to  find  such  security,  it  shall  be  the  duty  of  the  magis- 
trate to  commit  him  to  prison  until  he  shall  find  the 
same,  specifying  in  the  mittimus  the  cause  of  commit- 
ment and  the  sum  in  which  such  security  was  re- 
quired. 

Sec.  1222.  How  discharged  subsequently.  1868-'9,  c.  178, 
sub  chap.  2,  s.  7. 
Any  person  committed  for  not  finding  sureties  of  the 
peace  as  above  provided,  may  be  discharged  by  any  mag- 
istrate upon  giving  such  security  as  was  originally  re- 
quired of  such  person,  or  by  a  justice  of  the  supreme 
court,  or  judge  of  the  superior  or  criminal  court,  by  giv- 
ing such  other  security  as  may  seem  sufficient. 

Sec.  1223.  Recognizance  to  be  returned  to  next  term  of 
court.     1868-'J),  c.  178,  sub  chap.  2,  s.  8. 

Every  recognizance  taken  pursuant  to  the  foregoing 
provisions  shall  be  transmitted  by  the  magistrate  taking 
the  same  to  the  next  term  of  the  superior,  criminal  or  in- 
ferior court  for  the  county  in  which  the  otfence  is  charged 
to  have  been  committed. 

Sec.  1224.  Persons  committing  breach  of  tlie  peace  in 
presence  of  the  court  may  be  required  to  give 
security,  or  be  impri.soned.  1808-'»,  c.  178,  sub  chap. 
2,  s.  9. 

Every  person  who,  in  the  presence  of  any  magistrate 


Chap.  26.]      CRIMINAL  PROCEEDINGS.  483 

above  specified,  or  in  the  presence  of  any  court  of  record, 
shall  make  any  affray,  or  threaten  to  kill  or  beat  another, 
or  to  commit  any  offence  against  his  person  or  property; 
and  all  persons  wlio,  in  the  presence  of  such  magistrate 
or  court,  shall  contend  with  hot  and  angry  words,  may 
be  ordered  by  such  magistrate  or  court,  without  any 
other  proof,  to  give  such  security  as  above  specified,  and 
in  case  of  failure  so  to  do,  may  be  committed  as  above 
provided. 

Sec.  1225.  Proceeding's  on  recognizances.  1868-'9,  c. 
178,  sub  chap.  2,  s.  10. 

Every  person  who  shall  have  entered  into  a  recogni- 
zance to  keep  the  peace  shall  appear  according  to  the  ob- 
ligation thereof;  and  if  he  fail  to  appear,  the  court  shall 
forfeit  his  recognizance  and  order  it  to  be  prosecuted,  un- 
less reasonable  excuse  for  his  default  be  given. 

Sec.  1226.  If  complainant  does  not  appear,  the  accused 
shall  be  discharged,  otherwise  court  to  hear  the  proofs 
and  decide  accordingly.  lS68-'9,  c.  178,  sub  chap.  2, 
s.  11. 

If  the  complainant  does  not  appear,  the  party  recog- 
nized shall  be  discharged,  unless  good  cause  be  shown  to 
the  contrary.  If  the  respective  parties  appear,  the  court 
shall  hear  their  allegations  and  proofs,  and  may  either 
discharge  the  recognizance  taken,  or  they  may  require  a 
new  recognizance,  as  the  circumstances  of  the  case  may 
require,  for  such  time  as  may  appear  necessary,  not  ex- 
ceeding one  year. 

Sec.  1227.  Recognizance,  when  deemed  broken.  1868- 
'9,  c.  178,  sub  chap.  2,  s.  12. 

No  recognizance  taken  under  this  chapter  shall  be 
deemed  to  be  broken  except  in  the  case  provided  for  in 
the  next  two  preceding  sections,  unless  the  principal  in 
such  recognizance  be  convicted  of  some  offence  amount- 
ing in  judgment  of  law  to  a  breach  of  such  recogni- 
zance. 

Sec.  1228.  TVhere  there  is  evidence  of  breach,  court  shall 
order  recognizance  i^rosecuted.  1868-'9,  c.  178,  sub 
chap.  3,  s.  13. 

Whenever  evidence  of  such  conviction  shall  be  pro- 
duced in  the  court  in  which  the  recognizance  is  filed,  it 
shall  be  the  duty  of  such  court  to  order  the  recognizance 
to  be  prosecuted,  and  the  solicitor  shall  cause  the  proper 
proceedings  to  be  thereupon  taken. 


484  CRIMINAL  PROCEEDINGS.      [Chap.  26. 

Sec.  1229.  Term  of  court  expiring  dui-ing  progress  of 
trial,  court  shall  coutimie  it.  C.  C.  P.,  s.  397.  K.  C,  c. 
31,  s.  Hi.     1830,  c.  22. 

In  case  the  term  of  a  court  shall  expire  while  a  trial  for 
felony,  or  for  any  offence  punishable  by  imprisonment  in 
apenitentiaiy,  or  by  any  greater  punishment,  shall  be  in 
progress,  and  before  judgment  shall  be  given  therein,  the 
judge  shall  continue  the  term  as  long  as  in  his  opinion, 
it  shall  be  necessary  for  the  purposes  of  the  case. 

State  V.  Bullock,  63—570;  State  v.  Adair,  66—298;  State  v.  Jefferson,  66 
—309;  State  v.  Ilonej'cutt,  74—391;  State  v.  Taylor,  76—6-1;  State  v.  Mon- 
roe, 80—373;  State  v.  McGimsey,  80—877;  State  v.  Howard,  82—623; 
State  T.  Locke,  86—647. 

Sec.  1230.  Bail  may  arrest  and  surrender  principal  be- 
fore final  judgment;  bail  not  thereby  discharged  after 
recognizance  foi-feited.  K.  C,  c.  11,  s.  5.  1777,  c. 
115,  s.  20.    1848,  c.  7. 

The  bail  shall  have  liberty,  at  any  time  before  execu- 
tion awarded  against  him,  to  surrender  to  the  court  from 
which  the  process  issued,  or  to  the  sheriff  having  such 
process  to  return,  during  the  session,  or  in  the  recess  of 
such  court,  the  principal,  in  discharge  of  himself;  and 
such  bail  shall,  at  any  time  before  such  execution  award- 
ed, have  full  power  and  authority  to  arrest  the  body  of  his 
principal,  and  secure  him,  until  he  shall  have  an  oppor- 
tunity 1o  surrender  him  to  the  sheriff  or  court  as  afore- 
said;  "and  the  sheriff  is  hereby  required  to  receive  such 
surrender,  and  hold  the  body  of  the  defendant  in  custody, 
as  if  bail  had  never  been  given:  Provided,  that,  in 
criminal  proceedings,  the  surrender  by  the  bail,  after  the 
recognizance  forfeited,  shall  not  have  the  effect  to  dis- 
charge the  bail,  but  the  forfeiture  may  be  remitted  in  the 
manner  provided  for. 

Sec.  1231.  Persons  surrendered  may  give  other  bail; 
sheriflf  allowing  a  release  liable  to  be  amerced  and 
indicted.    K.  C,  c.  11,  s.  6.    1827,  c.  40. 

Any  person  surrendered  in  the  manner  specified  in  the 
preceding  section,  shall  have  liberty,  at  any  time,  before 
final  judgment  against  him,  to  give  bail;  and  in  case  of 
such  surrender,  the  sheriff  shall  take  the  bail-bond  or 
recognizance  to  the  succeeding  court;  and  in  case  the 
sheriff  shall  release  such  person  without  bail,  or  the  bail 
returned  be  held  insufficient,  on  exce])tion  taken  the  same 
term  to  which  such  bail-bond  shall  be  returned,  and 
allowed  by  the  court,   the  sheriff,  having  due  notice 


Chap.  26.]     CRIMINAL  PROCEEDINGS.  485 

thereof  in  criminal  cases,  shall  forfeit  to  the  state  the 
sum  of  one  hundred  dollars,  to  be  recovered  on  motion 
in  hke  manner  as  forfeitures  for  not  returning  process, 
and  be  subject  to  be  indicted  for  misdemeanor  in  office; 
and  it  shall  be  the  duty  of  the  prosecuting  officer  to  col- 
lect the  forfeiture;  and,  in  case  of  a  release,  the  sheriff 
shall  be  liable  for  an  escape,  and  may  be  prosecuted  and 
punished  as  provided  for  in  the  chapter  entitled  "crimes 
and  punishments." 

Sec.  1232.  SheriflF  or  other  officer  having  prisoner  in  cus- 
tody may  take  bail.    R.  C,  c.  1 1,  s.  8. 

If  any  person  for  want  of  bail  shall  be  lawfully  com- 
mitted to  jail  at  any  time  before  final  judgment,  the 
sheriff,  or  other  oificer  having  him  in  custody,  may  take 
sufficient  justified  bail  and  discharge  him;  and  the  bail- 
bond  shall  be  regarded,  in  every  respect,  as  other  bail- 
bonds,  and  shall  be  returned  and  sued  on  in  hke  manner; 
and  the  officer  taking  it  shall  make  special  return  there- 
of, with  the  bond,  at  the  first  court  which  is  held  after  it 
is  taken. 

Sec.  1233.  Matter  of  defence  which  is  good  for  principal 
is  good  for  hail.    R.  C,  c.  11,  s.  9. 

Every  matter  which  would  entitle  the  principal  to  be 
discharged  from  arrest,  may  be  pleaded  by  the  bail  in 
exoneration  of  his  liability. 

Sec.  1234.  Appeals  by  defendant  to  supreme  court.     R. 
C,  c.  4,  s.  21.    1818,  c.  963,  s.  4. 

In  all  cases  of  conviction  in  the  superior  or  criminal 
courts  for  any  criminal  offence,  the  defendant  shall  have 
the  right  to  appeal,  on  giving  adequate  security  to  abide 
the  sentence,  judgment  or  decree  of  the  supreme  court; 
and  the  appeal  shaU  be  perfected  and  the  case  for  the 
supreme  court  settled,  as  provided  in  civil  actions^ 

State  V.  Dixon,  71—204;  State  v.  Swepson,  82—541;  State  v.  Ham,  83— 
590;  State  v.  Respass,  85—534;  State  v.  Gaylord,  85—551;  State  v.  Locke, 
86—647. 

Sec.  1335.  Convicted  persons  may  appeal  without  giving 
security  for  costs.    1869-'70,  c.  196,  s.  1. 

In  all  such  cases  of  conviction  in  the  said  courts,  the 
defendant  shall  have  the  right  to  appeal  without  giving 
security  for  costs,  upon  filing  an  affidavit  that  he  is 
wholly  unable  to  give  security  for  the  costs,  and  is  advised 


486  CEIMINAL  PEOCEEDINGS.      [Chap.  26. 

by  counsel  that  he  has  reasonable  cause  for  the  appeal 
prayed,  and  that  the  application  is  in  good  faith. 

State  V.  Divine,  69—390;  State  v.  Dixon,  71—204;  State  v.  Hawkins,  73— 
180;  State  v.  Patiiek,  72—217;  State  v.  Morgan,  77—510;  State  v.  Spurtin, 
80—362;  Stell  v.  Barbani,  85—88;  State  v.  Gaylord,  85—551. 

Sec.  1236.  Judg-eto  grant  appeal  and  require  defendant 
to  give  security  for  his  appearance.  1 869-' 70,  c.  196 
s.  2. 

It  shall  be  the  duty  of  the  judge  on  filing  the  affidavit 
required  in  the  preceding  section,  to  grant  the  appeal 
without  security  for  costs,  and  for  any  bailable  offence 
shall  require  the  defendant  to  enter  into  recognizance  in 
a  reasonable  sum  to  make  his  appearance  at  tlie  first  term 
of  the  superior  or  criminal  court  to  be  held  in  the  county 
and  to  further  answer  the  charge  preferred. 

State  V.  Spurtin,  80—363;  State  v.  Hinson,  83—540:  State  v.  Swepson, 
83—584;  State  v.  Moore,  84—724;  State  v.  Gayloid,  85—551. 

Sec.  1237.  Appeal  by  state;  in  what  cases  recognized. 

An  appeal  to  the  supreme  court  may  be  taken  by  the 
state  in  the  following  cases,  and  no  other.  Where  judg- 
ment has  been  given  for  the  defendant — 

(1)  Upon  a  special  verdict; 

(2)  Upon  a  demurrer; 

(3)  Upon  a  motion  to  quash; 

(4)  Upon  arrest  of  judgment. 

State  V.  Bobbitt,  70—81;  State  v.  Lane,  78—547;  State  v.  Swepson,  83— 
584;  State  v.  Moore,  84—724;  State  v.  Scanlan,  85—601 ;  State  v  Powell 
86—640. 

Sec.  1238.  What  the  commitment  shall  set  forth.  1868- 
'9,  c.  178,  sub  chap.  4,  s,  17. 

The  commitment  to  the  county  prison  sliall  set  forth— 
(1)  The  name  of  the  guilty  person; 
<  2)  The  nature  of  the  offence  of  which  he  is  convicted 
and  the  date  of  the  trial; 

(3)  The  period  of  his  imprisonment; 

(4)  It  shall  be  directed  to  the  sheriff  of  the  county,  or 
to  tlie  keeper  of  the  county  jail,  and  shall  direct  hiin  to 
keep  the  prisoner  for  the  time  stated,  or  until  discliarged 
by  law; 

(5)  The  name  of  the  constable  or  other  officer  required 
to  execute  it; 

(6)  It  shall  be  signed  by  the  justice  and  be  dated. 


Chap.  26.]      CRIMINAL  PEOCEEDINGS.  487 

Sec.  1239.  Duty  of  solicitors  to  prosecute  certain  criminal 
cases  in  the  United  States  courts.    1874-'.5,c.  164,  s.  1. 

It  shall  be  the  duty  of  the  solicitors  of  this  state,  in 
whose  jurisdiction  the  circuit  and  district  courts  of  the 
United  States  are  held,  having  first  obtained  the  permis- 
sion of  the  judges  of  said  courts,  to  prosecute,  or  assist 
in  the  prosecution  of,  all  criminal  cases  in  said  courts, 
where  the  defendants  are  charged  with  violations  of  the 
laws  of  this  state,  and  have  moved  their  cases  from  the 
state  to  the  federal  courts  under  the  provisions  of  the 
various  acts  of  congress  on  such  subjects. 

Sec.  1240.  Compensation  of  solicitors  in  such  cases. 
1874-'5,  c.  164,  s.  S. 

For  every  such  case  in  which  the  solicitor  shall  appear 
and  prosecute,  or  assist  in  prosecuting,  he  shall  be  al- 
lowed twenty  doUais;  and  if  he  cannot  appear  himself, 
by  reason  of  a  conflict  of  the  time  of  holding  his  courts, 
or  other  good  cause,  he  may  appoint  some  one  to  act  in 
his  stead,  who  shall  receive  like  compensation,  and  the 
prosecuting  attorney  shall  be  paid  said  fee  by  the  treas- 
urer of  the  state,  upon  the  warrant  of  the  auditor. 

Sec.  1241.  Concurrent  jurisdiction  of  inferior  and  su- 
perior courts  in  certain  criminal  cases,  with  a  view  to 
a  speedy  trial  of  criminals.    1879,  c.  302,  s.  i . 

Wherever  in  any  county,  inferior  courts  have  been  or 
shall  hereafter  be  established,  the  said  inferior  court  and 
the  superior  court  for  such  county  shall  have  eqiial  power 
and  jurisdiction  to  inquire  of,  try,  hear  and  determine 
all  criminal  cases  of  which  jurisdiction  is  given  to  said 
inferior  courts,  or  of  which  jurisdiction  may  hereafter  be 
given  to  them,  whether  such  cases  have  been  returned  to 
the  said  superior  court  or  to  the  said  inferior  court. 

Sec.  1242.  Pendingr  cases  remaining  untried  to  l>e  trans- 
ferred to  succeedinj?  court  whether  inferior  or  su- 
perior.    1879,  c.  302,  s.  3. 

All  such  cases  pending  in  either  the  inferior  or  the  su- 
perior court  of  any  county  which  shall  not  have  been 
tried  and  determined  at  any  term  of  said  inferior  or  su- 
perior court  shall  be  transferred  by  the  clerk  of  such 
court  to  the  next  succeeding  court  whetlier  the  same  be 
an  inferior  or  superior  court,  and  shall  be  proceeded  in 
the  same  manner  and  with  like  power  and  jurisdiction 
to  said  court  (to  which  they  are  transferred)  to  hear,  try 
and  determine  as  if  the  bill  of  indictment  therein  had 


488  CEIMINAL  PEOCEEDINGS.      [Chap.  26. 

been  originally  found  by  the  grand  jury  of  the  same' 
Provided,  that  this  section  shall  apply  only  to  those  cases 
in  which  the  defendants  or  accused  are  confined  in  jail: 
Provided  further,  that  in  such  cases  the  handing  over  of 
the  papers  by  the  clerk  of  one  court  to  the  cleii  of  the 
other  court  where  the  trial  is  to  take  place,  and  the  dock- 
etmg  of  the  cases,  with  the  receipt  of  the  latter  on  the 
docket  of  the  former,  shall  be  deemed  and  held  a  suf- 
ficient transfer  of  any  such  case  from  one  court  to  an- 
other. 
State  V.  Mott,  86—631. 

Sec.  1243.  The  execution  of  capital  offenders  to  be  pri- 
vate, unless  the  county  commissioners  shall  otherwise 
order.    1868,  c.  21,  ss.  1,  2.    1879,  c.  221. 

As  the  ends  of  justice,  public  morals  and  the  preserva- 
tion of  order,  demand  that  the  execution  of  all  capital 
offenders  should  be  made  private  and  invested  with  the 
solemnity  appropriate  to  the  final  act  of  penal  law,  any 
sheriff  on  whom  shall  devolve  the  execution  of  a  sentence 
of  death  on  a  public  offender,  shall  be  required  to  pro- 
vide for  the  execution  of  such  criminal  within  the  jail 
yard  inclosure,  and  as  much  removed  from  public  view 
as  the  means  within  his  control  will  allow:  Provided, 
that,  for  reasons  which  may  be  deemed  good  and  suf- 
ficient, the  board  of  county  commissioners  may  other- 
wise order. 

Sec.  1244.  SheriflF  may  admit  to  witness  the  execution 
two  physicians  and  necessary  assistants.  1868,  c.  21, 
s.  3, 

The  sheriff,  after  having  provided  for  the  private  exe- 
cution of  the  criminal,  may  admit  by  ticket,  in  addition 
to  the  required  guard,  two  physicians  and  necessary  as- 
sistants, not  more  than  thirty-six  nor  less  than  eighteen 
respectable  citizens,  to  witness  for  the  state,  the  due  ob- 
servance of  the  law. 


Chap.  2T.]    DEEDS  AND  CONVEYANCES. 


489 


CHAPTEE  TWENTY-SEVEN. 
DEEDS  AND  CONVEYANCES. 


Section. 

1345.  Deeds  proved  and  registered  in 
county  where  land  lies  within 
two  years,  good  without  liv- 
ery. 

1246.  Deeds,  how  proved. 

(1)  Where  grantor,  &c.,  reside 
in  county  where  land  is  sit- 
uate. 

(2)  Where  grantor,  &c.,  reside 
in  the  slate,  but  not  in  the 
county  where  the  land  is  sit- 
uate. 

(3)  When  the  grantor,  maker  or 
subscribing  witness  resides  out- 
side the  state,  but  within  the 
United  States. 

(4)  Where  grantor  and  witness 
live  out  of  the  United  States. 

(5)  Privy  examination  of  married 
women,  by  whom  taken  and 
how  certified. 

(6)  Private  examination  to  be 
required  if  married  woman  be 
a  party. 

(7)  Form  of  the  certificate. 

(8)  When  grantor  or  witness  out 
of  the  state. 

(9)  Where  no  witness,  and  the 
maker  non-resident  or  dead. 

(10)  Where  witness  is  dead. 

1247.  Seal  of  court  not  put  to  pro- 
cess or  probate,  when. 

1248.  How  proved  when  land  lies  in 
two  or  more  counties. 

1249.  Powers  of  attorney, how  proven 
in  the  state,  how  proved  out  of 
the  state. 

12.50.  Deed  to  be  proved  before  com- 
missioners of  affidavits  in  other 
states. 


Section. 

1251.  Copies  of  registered  deeds  evi 
dence  unless  original  required. 

1252.  Deeds  of  gift  to  be  proved  and 
registered. 

1253.  Deeds,  &c.,  proved  and  regis- 
tered in  wrong  county,  copy 
may  be  registered  in  proper 
county. 

1254.  Mortgages  and  trust  deeds 
good  against  creditors  only 
from  registration. 

1255.  Property  of  corporations  not 
exempt  from  certain  liabilities 
on  account  of  mortgages. 

1256.  Deeds  by  husband  and  wife, 
how  executed,  proved  and 
registered. 

1257.  Conveyance  under  power  of 
attorney  from  husband  and 
wife  tu  pass  lands. 

1258.  The  clerk  may  issue  commis- 
sions for  taking  probate  in 
another  state. 

1259.  Certain  probates  and  registra- 
tions validated. 

1360.  Certain  probates  and  registra- 
tions validated. 

1261.  Applicable  to  all  conveyances. 

1262.  Registration  of  deeds  hereto- 
fore proven  before  notary  or 
clerk  of  superior  court  of 
another  state  validated. 

1363.  Evidence  under  preceding  sec- 
tion. 

1364.  Conlracts  to  sell  land  and 
leases  required  to  be  in  writ- 
ing, must  be  registered. 

1265.  Infant  trustees,  how  to   con- 
vey. 
1366.  Errors  in  registration  of  deeds, 


490 


DEEDS  AND  CONVEYANCES.     [Chap.  27. 


Section. 

ifec,    corrected    on    petition; 
appeal  allowed. 

1267.  Deeds,  how  made  when  sheriff 
who  sells  dies  or  removes  from 
the  state. 

1268.  Witnesses  to  deeds  may  be 
summoned  to  prove  them. 

1269.  Marriage  setllemcnts  regis- 
tered, otherwise  void  as  lo 
creditors. 

1270.  What  marriage  settlements 
good  against  creditors,  how 
deficiency  in  property  settled, 
made  up. 

1371.  Deeds  of  trust  and  mortgages. 
how  discharged  and  released. 

1272.  Mortgages  to  secure  purchase 
money  need  not  be  executed 
by  wife. 

1273.  Form  of  chattel  mortgage. 


Section. 

1274.  Deed  of  trust  under  preceding 
section  good  when  registered. 

1275.  Conditional  sale  of  personal 
property  to  be  in  writing  and 
registered. 

1276.  In  what  cases  clerks  of  the 
superior  court  to  appoint 
trustee. 

1277.  Consolidation  of  surveys;  pro- 
viso; common  surveys  may  be 
recorded. 

1278.  Donations  to  persons  while  in 
slavery. 

1279.  Time  extended  for  registering 
grants  of  land  and  other  in- 
struments. 

1280.  All  conveyances  of  real  estate 
to  be  construed  to  be  in  fee, 
unless  otherwise  expressly  set 
forth. 


Sec.  1245.  Deeds  proved  and  registered  in  oouiity  Avhere 
land  lies  within  two  years,  good  without  livery.  29 
Ch.  II.,  c.  lO,  s.  2.  R.  C,  o.  37,  s.  1.  171.5,  c.  7,  s.  1. 
1756,  0.  58,  s.  3.      1777,  (.   115,  s.  2.      1818,  e.  063, 

s.  2. 

No  conveyance  of  land  nor  contract  to  convey,  nor 
lease  of  land  for  more  than  three  years,  shall  be  good 
and  available  in  law  unless  the  same  shall  be  acknowl- 
edged by  the  grantor  or  ^jroved  on  oath  by  one  or  more 
witnesses  in  the  manner  hereinafter  directed,  and  regis- 
tered in  the  county  where  the  land  shall  lie  within  two 
years  after  the  date  of  the  said  deed;  and  all  deeds  so 
executed  and  registered  shall  be  valid,  and  pass  estates 
in  land  without  livery  of  seizin,  attornment  or  other 
ceremony  whatever. 

Morris  v.  Ford,  2  Dev.  Eq.,  412:  Walker  v.  Coltraine,  6  Ired.  Eq.,  79; 
Doak  V.  State  Bank,  6  Ired.,  309;  Osborne  v.  Ballew,  7  Ired.,  415;  Wals- 
ton  V.  Brasswell,  1  Jon.  Eq.,  137;  Freeman  v.  Hatley,  3  Jon.,  115;  Wil- 
liams v.  Griffin,  4  Jon,,  31;  Johnson  v.  Pendcrgrass,  4  Jon.,  479;  Latham 
v.  Bowcn,  7  Jon.,  337;  Salms  v.  ]\Iartin,  63—608;  Linker  v.  Long,  64—296; 
l.ievy  V.  Griffls,  65 — 236 ;  Ho^an  v.  Strayhom,  65 — 279 ;  Ivey  v.  Granberry, 
66—223;  Isler  v.  Foy,  66—547;  Paul  v.  Carpenter,  70—502;  Starke  v. 
Etheridge,  71— 240;  Holmes  v.  Mar.-hal,  72—37;  Wilson  v.  Sparks,  72— 
208;  Triplett  v.  Withcrspoon,  74—475;  McMillan  v.  Edwards,  75— 81 ; 
Buio  V.  Carver,  75 — 559;  Hare  v.  Jernigan,  76 — 471;  Mayo  v.  Jones,  78 — 
402;  Riggan  v.  Green,  80—336;  King  v.  Portis,  81—382;   Henley  v.  Wil- 


Chap.  27.]    DEEDS  AND  CONVEYANCES.  491 

son,    81—405;    Mauney  v.    Crowell,   84— 314;    Davis  v.   Inscoe.   84—396; 
Mosely  v.  Mosely,  87—69;  Love's  Ex'rs  v.  Harbiu,  87—249. 

Sec.  1246.  Deeds,  how  proved.  K.  C,  c.  37,  s.  8.  C.  C. 
P  s.  439.  1866,  c.  30,  s.  1.  1868-'9,  c.  277,  s.  15. 
1876-'7,  c.  161.  1879,  c.  22.  1879,  c.  77.  1879,  c. 
128.  1881,  c.  334.  1881,  c.  341. 

All  deeds  conveying  lands,  letters  of  attorney  or  other 
instruments  requiring  registration  must  be  offered  for 
probate  or  a  certified  copy  thereof  must  be  exhibited  be- 
fore the  clerk  of  the  superior  court  of  any  county  in  the 
manner  following: 

Johnson  v.  Pendergrass,  4  Jon.,  479. 

(1)   WHERE   GRANTOR,  &C.,  RESIDE  IN   THE   COUNTY   WHERE 
LAND  IS  SITUATE. 

When  the  grantor  or  maker,  or  subscribing  witness, 
resides  in  the  county  wherein  the  land  lies,  the  deed,  let- 
ter of  attorney  or  other  instrument  requiring  registi-a- 
tion  must  be  acknowledged  by  such  grantor  or  maker,  or 
proved  by  the  oath  of  such  subscribing  witness,  before 
the  clerk  of  the  superior  or  of  the  inferior  court,  or  be- 
fore a  notary  public  or  justice  of  the  peace  of  such 
county,  who  shall  enter  his  certificate  thereon;  and  such 
deed,  "letter  of  attorney  or  other  instrument  with  the 
certificate  thereon,  on  exhibition  to  the  clerk  of  the  su- 
perior court  of  said  county,  shall,  if  in  due  form,  be  ad- 
mitted by  him  to  probate  and  ordered  to  be  registered 
with  the  certificates  thereto  attached. 

Starke  v.  Etheredge,  71—240;  Holmes  v.  Marshall,  72—37;  Rollins  v. 
Henry,  78—342 ;  Mayo  v.  Jones,  78—402 ;  Black  v.  Justice,  86—504. 

(2)   WHERE  GRANTOR,  &C.,  RESn)E  IN  THE   STATE,  BUT  NOT 
IN   THE   COUNTY  WHERE   THE   LAND   IS   SITUATE. 

When  the  grantor,  maker  or  subscribing  witness  re- 
sides in  the  state,  but  not  in  the  county  wherein  the  land 
lies,  such  deed,  letter  of  attorney  or  other  instrument 
requiring  registration  must  be  acknowledged  by  such 
grantor  or  maker,  or  proved  by  the  oath  of  such  sub- 
scribing witness  before  a  judge  of  the  supreme  or  of  the 
superior  court,  or  before  the  clerk  of  the  superior  court, 
or  the  inferior  court,  or  a  notary  public  or  justice  of  the 
peace  of  the  county  wherein  the  grantor,  maker  or  sub- 
scribing witness  resides;  and  if  such  acknowledgment  or 
proof  shall  be  had  before  a  justice  of  the  peace,  the  clerk 
of  the  superior  court  of  the  county  of  such  justice  shall 


492  DEEDS  AND  CONVEYANCES.     [Chap.  27. 

certify  upon  such  deed,  letter  of  attorney  or  instrument 
the  fact  of  such  acknowledgment  or  proof,  and  the  fur- 
ther fact  that  such  justice  was  at  the  time  of  taking 
such  acknowledgment  or  proof  an  acting  justice  of  said 
county.  And  the  clerk  of  the  superior  court  of  the 
county  wherein  the  land  lies,  upon  the  exhibition  to  him 
of  such  deed,  letter  of  attorney  or  other  instrument,  to- 
gether with  the  said  certificates,  or  with  the  certificate  of 
a  judge  of  the  supreme  or  of  the  superior  court,  or  no- 
tary, shall  adjudge  the  said  deed,  letter  of  attorney  or 
other  instrument  to  be  duly  acknowledged  or  pi-ovei^  in 
the  same  manner  as  if  taken  or  made  before  him,  and 
order  the  same,  with  his  certificate  and  the  other  certifi- 
cates attached,  to  be  registered- 
Holmes  V.  Marshall,  72—37. 


(3^  WHEN  THE  GRANTOR,  MAKER  OR  SUBSCRIBING  WITNESS 
RESIDES  OUTSIDE  THE  STATE,  BUT  WITHIN  THE  UNITED 
STATES. 

Where  the  grantor,  maker  or  subscribing  witness  re- 
sides outside  of  the  i-.tate,  the  deed,  letter  of  attorney  or 
other  instrament  requiring  registration  in  the  state  may 
be  acknowledged  or  proved  by  the  grantor,  maker  or 
subscribing  witness  before  a  judge,  clerk  of  a  court  of 
record,  notary  public  having  notarial  seal,  mayor  of  a 
city  having  a  seal,  or  justice  of  the  peace  of  the  state  in 
which  said  grantor,  maker  or  subscribing  witness  resides; 
and  the  certificate  of  said  judge,  clerk  of  a  court  of  rec- 
ord under  the  seal  of  said  court,  mayor  of  a  city  or  notary 
public  under  their  respective  seals,  touching  the  acknowl- 
edgment or  proof  of  such  persons  shall,  if  adjudged  to  be 
in  due  form  by  the  clerk  of  the  superior  coui't  of  the 
county  in  which  the  land  is  situate,  or  the  letter  of  attor- 
ney or  other  instrument  is  required  to  be  registered,  be 
ordered  by  said  clerk  to  be  registered  as  deeds  made  by 
grantors  and  makers  residing  within  the  state  are  re- 
quired by  law  to  be  registered.  If  the  acknowledgment 
or  proof  of  the  execution  of  said  deed,  letter  of  attorney, 
or  other  instrument  requiring  registration,  be  had  before 
a  justice  of  the  peace  of  another  state,  then  the  clerk  of 
the  court  of  record  of  the  county  in  which  said  justice 
resides  shall  certify  under  the  seal  of  his  court  that  said 
justice  was  at  the  time  of  taking  the  said  acknowledg- 
ment or  proof,  an  acting  justice  of  the  peace  of  said 
county  and  state,  and  that  the  signature  of  said  justice 
was  in  his  own  proper  handwriting;  and  if  said  certificate 


Chap.  27.]    DEEDS  AND  CONVEYANCES.  493 

shall  be  adjudged  to  be  in  due  form  by  the  clerk  of  the 
superior  court  of  the  county  in  which  the  land  is  situate, 
or  letter  of  attorney,  or  other  instrument,  is  required  to 
be  registered,  then  the  said  clerk  of  said  superior  court 
shall  order  the  same  to  be  registered,  as  deeds  made  by 
grantors  or  makers  residing  within  this  state  are  required 
to  be  registered. 

Wbitsett  V.  Forehand,  79—230;  Todd  v.  Outlaw,  79—235. 


(4)  WHERE  GRANTOR  AND  WITNESS  LIVE  OUT  OF  THE  UNITED 
STATES. 

Where  the  grantor  or  maker  and  the  subscribing  wit- 
ness reside  beyond  the  limits  of  the  United  States,  the 
deed  or  other  instrument  may  be  personally  acknowl- 
edged by  such  grantor  or  maker,  or  proved  on  the  oath 
of  such  subscribing  witness,  before  the  chief  magistrate 
of  any  city  in  the  country  where  the  grantor  or  witness 
is  resident;  or  before  any  ambassador,  minister,  consul, 
or  commercial  agent  of  the  United  States,  and  where 
such  proof,  or  acknowledgement  is  certified  under  the 
corporate  seal  of  such  chief  magistiate,  or  imder  the  offi- 
cial seal  of  such  ambassador,  minister,  consul,  or  com- 
mercial agent,  and  where  such  certificate  is  affixed  to  the 
deed  or  other  instrument,  and  the  same  is  exhibited  be- 
fore the  clerk  of  the  superior  court  having  jurisdiction, 
he  shall  adjudge  that  such  deed,  or  other  instrument,  is 
duly  proved  or  acknowledged,  and  order  it,  with  his  cer- 
tificates and  the  accompanying  certificates,  to  be  regis- 
tered. 

Paul  V.  Carpenter,  70—503;  Starkie  v.  Etheridge,  71—240. 


(5)  PRIVY  EXAMINATION   OF    MARRIED  WOMEN,    BY   WHOM 
TAKEN  AND  HOW  CERTIFIED. 

When  the  privy  examination  of  any  married  woman 
is  necessary  to  be  taken,  the  persons  authorized  to  take 
the  acknowledgment  of  any  grantor  or  maker  or  proof 
of  the  execution  of  any  deed,  letter  of  attorney  or  other 
instrument  requiring  registration,  are  hereby  empowered 
to  take  the  privy  examination  of  any  married  woman 
touching  her  free  assent  to  such  deed,  letter  of  attorney 
or  other  instrument  to  which  her  assent  is  or  may  be 
necessary,  and  to  certify  the  fact  of  such  privy  examina- 
tion in  the  same  manner  as  they  are  authorized  to  take 
and  certify  the  acknowledgment  of  any  grantor  or  maker 


49i  DEEDS  AND  CONVEYANCES.     [Chap.  27. 

of  such  deed,  letter  of  attorney  or  other  instrument. 
And  the  clerk  of  the  superior  court  of  the  county  in 
which  the  land  is  situate  or  of  the  county  where  the 
deed,  letter  of  attorney  or  other  instrument  is  required 
to  be  registered,  upon  the  exhibition  of  said  letter  of 
attorney  or  other  instrument,  with  the  certificates,  to 
him,  if  he  shall  adjudge  the  same  to  be  in  due  form,  shall 
admit  the  said  deed,  letter  of  attorney  or  other  Mistru 
ment  to  probate  and  order  it  with  his  certificate  and  the 
iccompanying  certificates  to  be  registered. 
Wright  V.  Player,  73—94;  Clayton  v.  Rose,  87—106. 


(6)   PRIVATE  EXAiriNATION    TO    BE    REQUIRED  IP  MARRIED 
WOMAN  BE  A  PARTY. 

When  the  pi'oof  or  acknowledgment  of  a  conveyance, 
power  of  attorney  or  other  instrument  concerning  the 
interest  of  a  married  woman  in  lands,  is  taken  as  in  this 
chapter  directed,  no  clerk  of  the  superior  court  shall 
adjudge  such  conveyance  or  other  instrument  to  be  duly 
proved  or  acknowledged  unless  the  private  examination 
of  such  married  woman  is  taken  according  to  the  laws 
of  this  state  and  a  certificate  thereof  attached  to  the 
deed  or  other  instrument. 

(7)   FORM  OF  THE  CERTIFICATE. 

For  the  purposes  of  this  chapter  the  certificates  of  pi-o- 
bate  or  acknowledgment  shall  be  substantially  as  fol- 
lows: 

State  of } 

County.  )" 

I,  A.  B.,  (here  give  name  of  oiBcer,  as  the  case  may  be,)  do  hereby  cer- 
tify that  (here  give  name  of  granior,  and  if  acknowledged  by  wife,  her 
name,  and  add  Iiis  toife)  personally  appeared  before  me  this  day  and 
acknowledged  the  due  execution  of  the  foregoins  (or  annexed)  deed  of 
conveyance  (or  other  instrument)  and  (if  the  w'ife  is  a  signer)  the  said  (licre 
give  wife's  name)  being  by  me  privately  examined,  scjiarate  and  apart  from 
her  said  husband,  touching  her  voluntary  execution  of  the  same,  doth 
slate  that  she  signed  the  .same,  freely  and  vohiularily,  without  fear  or 
compulsion  of  her  said  husband  orany'otlier  person,  and  that  she  doth  still 
volunlarily  assent  therelo.  Witness  my  hand  and  seal  (private  or  olHcial, 
as  the  case  may  be)  this  (day  of  month)  A.  D.  (year). 

Signature  of  officer,   [seal]. 

And  when  such  proof  or  acknowledgment  has  been  had 
or  taken  by  a  justice  of  the  peace,  the  clerk  of  the  court 
of  i-ecord  shall  use  substantially  the  following  form  of 
certificate: 


Chap.  27.]    DEEDS  AND  CONVEYANCES.  495 

State  of '. 

County.  \ 

The  foreffoing  (or  annexed)  certificate  of  A.  B.,  a  justice  of  the  peace  of 
=,. .  !=.  county,  is  adjudged  to  be  correct.     Let  tlie  deed  (or  other 
insVrument),  with  the  certificates,  be  registered 

'  Signature  of  the  clerk.     [SEAL.J 

(of  the  court.) 

If  the  acknowledgment,  or  proof,  of  privy  examina- 
tion be  taken  out  of  the  county  where  the  land  is  situate 
or  the  instrument  is  required  to  be  registered  or  beyond 
the  limits  of  the  state,  then  in  addition  to  the  hrst  certiti_ 
cate  before  mentioned,  tbe  clerk  of  the  superior  court  ot 
the  countv,  or  the  clerk  of  the  court  of  record  m  the 
county  and  state  in  which  the  person  taking  the  exanim- 
ation,  acknowledgment  or  proof,  resides,  shall  certify 
substantially  as  follows: 


State  of. 


I  hereby  certify  that  A.   B.   (in.sert  the  name  of  the  officei  taking  the 
proofs  &c.)  was,  at  the  time  of  signing  tlie  foregoing  certificate,   a  (justice 

of  the  peace)  in  and  for  the  county  of and  state  ot.  ........ ., 

and  tliat  his  signature  thereto  is  in  his  own  proper  liandwriting.  In  witness 
whereof  I  hereunto  set  my  hand  and  seal  of  office  this aay  oi 

(Signature  of  clerk.) 

(Seal  of  ofBce.) 

(8)  MTIEN  GRANTOR  OR  WITNESS  OUT  OF  THE  STATE. 

Whenever  the  subscribing  watness  to  any  instrument 
required  or  allowed  to  be  registered,  shall  be  a  non-resi- 
dent or  shah  be  dead,  and  the  maker  shall  also  be  a  non- 
resident or  dead,  the  proof  of  the  handwriting  of  such 
witness  or  that  of  the  maker  before  the  clerk  of  the  su- 
perior court  of  the  county  where  the  instrument  is  sought 
to  be  registered,  shall  be  sufficient  evidence  of  the  exe- 
cution thereof  to  admit  the  same  to  registration,  and  in 
case  such  maker  shall  have  subscribed  with  a  mark  only, 
the  proof  of  the  signature  of  such  witness  shaU  be  suth- 
cient. 

Black  V.  Justice,  86—504;  Love's  Ex'rs  v.  Harbin,  87—349. 

(9)  When  no  witness    and    the    maker   non-resident 

OR  dead. 

Whenever  any  such  instrument  shall  not  have  a  wit- 
ness, and  the  maker  thereof  shall  be  non-resident  or  dead, 


496  DEEDS  AND  CONVEYANCES.     [Chap.  27. 

proof  of  his  handwriting  shall  be  suflScient  to  admit  the 
same  to  registration. 

Rollins  V.  Henry,  78-342;  Miller  v.  Hahn,   84—226;  Black  v.   Justice, 
86—504;  Love's  Ex'rs  v.  Harbin,  87—349. 


(10)  WHERE  WITNESS  IS  DEAD. 

In  all  cases  of  the  probate  of  any  deed  or  other  instru- 
ment required  or  allowed  to  be  registered,  having  a  sub- 
scribing witness  who  may  be  dead,  satisfactory  proof  of 
his  handwriting  or  of  the  handwriting  of  the  grantor  or 
maker  when  there  is  no  subscribing  witness  shaU  be 
deemed  sufficient  proof  for  the  purpose  of  allowing  the 
registration  thereof. 

Rollins  V.  Henry,  78— 343;  Black  v.  Justice,  86—504;  Love's  Ex'rs  v 
Harbin,  87—349. 

Sec.  1247.  Seal  of  court  not  put  to  process  or  probates, 
when.    B.  C,  c.  31,  s.  120. 

Where  the  clerk  of  the  superior  court  issues  precepts 
or  process  to  the  county  of  which  he  is  clerk,  or  takes  the 
proof  or  acknowledgment  of  deeds  or  other  instruments 
authorizing  the  registration  thereof  or  orders  the  regis- 
tration of  such  deed  or  instrument  in  such  county,  he 
shall  not  annex  the  seal  of  the  court  thereto. 

Sec.  1248.  How  proved  when  land  lies  in  two  or  more 
counties.    C.  C.  P.,  s.  430. 

Where  real  estate  is  situate  in  two  or  more  counties, 
probate  of  the  deed  or  other  instrument  conveying  or  con- 
cerning the  same,  made  before  the  clerk  of  the  superior 
court  of  either  of  said  counties,  is  sufficient. 

Sec.  1249.  Powers  of  attorney,  how  proved  in  the  state, 
how  proved  out  of  the  state.  K.  C,  c.  37,  s.  14.  1798, 
c.  514,  ss.  3,  4.     1846,  c.  68,.ss.  2,  3. 

Every  power  of  attorney,  wherever  made  or  concern- 
ing whatsoever  matter,  may  be  registered  on  acknowl- 
edgment or  probate  of  the  same  in  the  county  wherein 
the  property  or  estate  may  be  situate,  if  it  concern  the 
conveyance  thereof;  and  if  the  same  do  not  concern  the 
conveyance  of  any  estate  or  property,  then  in  the  county 
where  the  attorney  may  reside  or  the  business  is  to  be 
transacted.  And  such  powers  of  attorney  as  do  not  con- 
cern the  conveyance  of  land  by  a  feme  covert,  whereof  it 
may  be  necessary  to  take  the  acknowledgment  or  probate 


Chap.  27.]    DEEDS  AND  CONVEYANCES.  497 

out  of  the  state,  may,  besides  the  other  modes  provided 
in  this  chapter,  be  acknowledged  or  proved  before  any 
mayor  or  presiding  magistrate  of  any  city  or  a  clerk  of  a 
court  of  record;  and  such  acknowledgment  or  probate 
being  duly  taken  and  certified  under  the  seal  of  office  of 
such  officer  shall,  on  the  same  being  produced  before  the 
clerk  of  the  superior  court  of  the  proper  county,  be  or- 
dered by  him  to  be  registered,  and  shall  be  registered. 

Freeman  v.  Hatley,  3  Jon.,  115. 

Sec.  1250.  Deed  to  be  proved  before  commissioners  of  affi- 
davits ia  other  states.    C.  C.  P.,  s.  429.     1879,  c.  77. 

Where  the  acknowledgment  or  proof  of  any  deed  or 
other  instrument  is  taken  or  made  in  the  manner  directed 
by  the  laws  of  this  state,  before  any  commissioner  of  affi- 
davits for  the  state  of  North  Carolina,  appointed  by  the 
governor  thereof,  in  any  of  the  states  or  territories  of  the 
United  States  or  in  the  District  of  Columbia;  and  where 
such  acknowledgment  or  proof  is  certified  by  such  com- 
missioner, the  clerk  of  the  superior  court  having  juris- 
diction, upon  the  same  being  exhibited  to  him,  shall  ad- 
judge such  deed  or  other  instrument  to  be  duly  acknowl- 
edged or  proved  in  the  same  manner  as  if  made  or  taken 
before  him.  Every  clerk  of  a  court  of  record  in  any 
other  state  shall  have  as  full  power  as  a  commissioner  of 
affidavits  and  deeds  as  is  vested  in  regularly  appointed 
commissioners  of  affidavits  and  deeds  of  the  state. 

Starke  v.  Etlieridge,  71—240;  Todd  v.  Outlaw,  79—235;  Love's  Ex'rs  v. 
Harbin,  87—249. 

Sec.  1251.  Copies   of  registered   deeds   evidence   unless 
original  required.    K.  C,  c.  37,  s.  16.    1846,  c.  68,  s.  1. 

The  registry  or  duly  certified  copy  of  the  record  of  any 
deed,  power  of  attorney  or  other  instrument  required  or 
allowed  to  be  registered  or  recorded,  may  be  given  in  evi- 
dence in  any  court,  and  shall  be  held  to  be  full  and  suffi- 
cient evidence  of  such  deed,  power  of  attorney  or  other 
instrument,  although  the  party  offering  the  same  shall  be 
entitled  to  the  possession  of  the  original,  and  shall  not 
account  for  the  non  production  thereof,  unless  by  a 
rule  cr  order  of  the  court,  made  upon  affidavit  suggesting 
some  material  variance  from  the  original  in  such  registry 
or  other  sufficient  grounds,  such  party  shall  have  been 
previously  required  to  produce  the  original,  in  which  case 
the  same  shall  be  produced  or  its  absence  duly  accounted 
for  according  to  the  course  and  practice  of  the  court. 


498  DEEDS  AND  CONVEYANCES.     [Chap.  27. 

Bohanan  v.  Shelton,  1  Jon..  370;  Latham  v.  Bowen,  7  Jon.,  337;  Short 
V.  Cinrie,  8  Jon.,  42;  Hughes  v.  Debnam,  8  Jon.,  137;  Gudger  v.  Hensley, 
8S-481;  Mauney  V.  CjowcII,  84— 314;  Moore  v.  Hill,  85— 218;  Love'sEx'rs 
V.  Harbin,  87—249. 

Sec.  1252.  Deeds  of  gift  to  be  proved  and  registered.  R 
C..  c.  ,37,  .s.  18.     1780,  c.  .315,  s.  2. 

All  deeds  of  gift  of  any  estate  of  whatever  nature  shall 
withm  two  years  after  the  making  thereof  be  proved  in 
due  form  and  registered,  or  otherwise  shall  be  void. 

Sec.  1253.  Deed.s,  &c.,  proved  and  registered  in  wrong 
county,  copy  may  be  registered  in  proper  county.  1858 
-'O,  c.  18,."-.  2. 

A  duly  cejtified  copy  of  any  deed  or  writing  required 
or  allowed  to  be  ]-egistered,  may  be  registered  in  any 
county;  and  the  registry  or  duly  certified  copv  of  any 
deed  or  writing  when  registered  in  the  county  where  the 
land  is  situate  may  be  given  in  evidence  in  any  court  of 
the  state. 

Sec.  1254.  Mortgages  and  trust  deeds  good  against  credi- 
tors only  from  registration.  K.  C.,  c.  37,  s.  22.  18"9 
c.  20,  s.  1. 

No  deed  of  trust  or  mortgage  for  real  or  personal  estate 
shall  be  valid  at  law  to  pass  any  property  as  against 
creditors  or  purchasers  for  a  valuable  consideration  from 
the  donor,  bargainor  or  mortgagor,  but  from  the  regis- 
tration of  such  deed  of  trust  or  mortgage  in  the  county 
where  the  land  heth;  or  in  case  of  personal  estate  where 
the  donor,  bargainor  or  mortgagor  resides;  or  in  case  the 
donor,  bargainor  or  mortgagor  shall  reside  out  of  the 
state,  then  in  the  county  wheve  the  said  pei-sonal  estate, 
or  some  part  of  the  same,  is  situate;  or  in  case  of  choses 
in  action,  where  the  donee,  bargainee  or  mortgagee  re- 
sides. 

Smith  V.  Washington,  1  Dev.  Eq.,  318;  Skinner  v.  Cox,  4  Dev.,  59; 
Mdore  y.  Collins,  4  Dev.,  384;  JMcKiunon  v.  McLean,  2  D.  &  B.,  79^ 
Metts  V.  Bright,  4  D.  &  B.,  173;  Norwood  v.  Marrow,  4  D.  &  B., 
442;  Saunders  v.  Fenell,  1  Ired.,  97;  Halcombe  v.  Ray,  1  lied.,  340;  Dewey 
V.  Litllejohn,  2  Ired.  Eq.,  49.5;  Doak  v.  Slate  Bank,  6  ired..  309;  DeCourccy, 
Lafourcade  &  Co.  v.  Barr,  Busb.  Eq.,  181;  Leggett  v.  Bullock,  Busb.,  283- 
Barnett  v.  Barnett,  1  .Jon.  Eq.,  221;  Simpson  v.  Morris,  3  Jon.,  411;  Bar- 
rett V.  Cole,  4  Jon.,  40;  Green  v.  Kornegay,  4  Jon.,  66;  Dukes  v.  Jones,  6 
Jon.,  14;  Newell  v.  Taylor,  3  Jon.,  374;  Johnson  v.  Malcolm,  6  Jon.  Eq., 
120;  Parker  V.  Scott,  64—118;  McCoy  v.  Wood,  70—125;  Robinson  v.  Wil' 
lougliby,  70—358;  Edwards  v.  Thompson,  71-177;  Starke  v.  Etheridge,  71 


Chap.  27.]    DEEDS  AND  CONVEYANCES.  499 

—210;  Moore  v.  Ragland,  74—348;  Blevins  v.  Barker,  75—436;  Beaman  v. 
Simmons,  76— 43;  King  v.  Portis,  77—35;  Capehart  v.  Biggs,  77—261; 
Puiuell  V.  Vaughan,  77— 268;  Todd  v.  Outlaw,  79— 235;  Harris  v.  Jones, 
83—317;  Moring  v.  Dickerson,  85—466. 


Sec.  1255.  Property  of  corporations  not  exempt  from 
certain  liabilities  on  account  of  mortgages.  1879,  c. 
101. 

Mortgages  of  incorporate  companies  upon  their  prop- 
erty or  earnings,  whether  in  bonds  or  otherwise,  here- 
after issued,  shall  not  have  power  to  exempt  the  pi-operty 
or  earnings  of  such  incorporations  from  execution  for  the 
satisfaction  of  any  judgment  obtained  in  courts  of  the 
state  against  such  incorporation  for  labor  performed  nor 
for  material  furnished  such  incorporation,  nor  for  torts 
committed  by  such  incorporation,  its  agent  or  employees, 
whereby  any  person  is  killed  or  any  person  or  property 
injured,  any  clause  or  clauses  in  such  mortgage  to  the 
contrary  notwithstanding. 


Sec.  1256.  Deeds  by  luisbancl  and  wife,  how  executed, 
proved  and  registered.  C.  C.  P.,  s.  429,  sub  s.  6. 
1868-'9,  c.  277,  s.  15. 

Every  conveyance,  power  of  attorney  or  other  instru 
ment  affecting  the  estate,  right  or  title  of  any  married 
woman  in  lands,  tenements  or  hereditaments,  must  be 
executed  by  such  married  woman  and  her  husband;  and 
due  proof  or  acknowledgment  thereof  must  be  made  as 
to  the  husband  and  as  to  the  wife;  and  the  privy  exami- 
nation of  the  wife  touching  her  voluntary  assent  to  such 
conveyance,  power  of  attorney,  or  other  instrument  re- 
quiring registration,  shall  be  taken  separate  and  apart 
from  her  liusband,  and  such  acknowledgment  or  proof 
and  privy  examination  shall  be  taken  and  certified  as 
hereinbefore  provided  in  this  chapter.  And  such  convey- 
ance, power  of  attorney,  or  other  instrument,  shall  be 
valid  in  law  to  pass  the  estate,  right  and  title  of  tlie  wife 
to  all  such  lands,  tenements  or  hereditaments  so  con- 
veyed or  to  be  conveyed. 

Green  v.  Branton,  1  Dev^  Eq.,  500;  Askew  v.  Daniel,  5  Ired.  Eq.,  321; 
Keerns  V.  Peeler,  4  Jon.,  226;  Woodburn  v.  Gorrcll,  66—82;  Hairis  v. 
Jenkins.  72— 186;  Rountree  v.  Gay,  74—447;  Towles  v.  Fisher,  77— 438; 
Johnts  V.  Colien,  82-75;  HoUinosworth  v.  Hi;rman,  83—153;  Scott  v. 
Battle,  85—184;  Holmes  v.  Holmes,  86—205 ;  Clayton  v.  Rose,  87—106. 


500  DEEDS  AND  CONVEYANCES.     [Chap.  27. 

Sec.  1257.  Conveyance  under  power  of  attorney  from 
husband  and  wife  to  pass  lands.  K.  C,  c.  37  s.  11 
1798,  C.510. 

All  conveyances  which  may  be  made  by  any  person 
under  a  power  of  attorney  from  any  feme  covert  by  her 
freely  executed  with  her  husband,  shall  be  valid  to  all 
intents  and  purposes  to  pass  the  estate,  right  and  title 
which  said  fenie  covert  may  have  in  such  lands,  tene- 
nients,  and  hereditaments  as  are  mentioned  or  included 
in  such  power  of  attorney. 

Sec.  1258.  The  clerk  may  issue  commissions  for  taking 
probate  in  another  state.    1869-'70,  c.  185,  s.  1. 

Whenever  it  shall  appear  to  the  clerk  of  the  superior 
court  of  any  county  that  any  person  non-resident  of  this 
state  is  desirous  of  acknowledging  a  power  of  attorney, 
deed  or  other  conveyance  touching  any  real  estate  situ- 
ated in  the  county  of  said  clerk,  he  shall  issue  a  commis- 
sion to  a  commissioner  for  receiving  such  acknowledg- 
ment, or  taking  such  proof,  and  said  commissioner  may 
likewise  take  the  acknowledgment  and  privy  examina- 
tion of  a  man-ied  woman  separate  and  apart  from  her 
husband,  touching  her  assent  to  any  power  of  attorney, 
deeds  or  other  conveyances,  touching  real  estate  in  said 
county.  The  commissioner  shall  make  certificate  of  the 
acknowledgments  or  proof  and  privy  examination  made 
by  him,  and  shall  return  the  eame  to  the  clerk  of  the 
superior  court,  whereupon  he  shall  adjudge  that  such 
conveyance,  power  of  attorney  or  other  instrument  is 
duly  acknowledged  or  proved,  and  that  such  examination 
is  in  due  form,  and  shall  order  the  same  to  be  registered. 

Sec.  1259.  Certain  probates  and  registrations  validated. 
18G9-'70,  c.  185,  s.  2. 

All  probates,  examinations  and  registrations  hereto- 
fore had  in  accordance  with  the  two  preceding  sections 
are  declared  valid  and  sufficient. 

Sec.  1 260.  Certain  probates  and  registrations  validated. 
1871-'2,c.  200,  s.  1. 

Wherever  the  judges  of  the  supreme  or  the  superior 
court,  or  the  deputy  clerks  of  the  superior  court,  mis- 
taking their  powers,  have  essayed  previously  to  the 
twelfth  day  of  February,  one  thousand  eight  hundred 
and  seventy-two,  to  take  the  probate  of  deeds  and  the 
privy  examination  of  femes  covert,  whose  names  are 
signed  to  such  deeds,  and  have  ordered  said  deeds  to 


Chap.  27.]    DEEDS  AND  CONVEYANCES.  501 

registration,  and  the  same  have  been  registered,  all  sucli 
probates,  privy  examinations  and  registrations  so  taken 
and  had,  shall  be  as  valid  and  binding  to  all  intents  and 
purposes  as  if  the  same  had  been  taken  before  or  ordered 
by  the  clerk  of  the  superior  court,  or  other  proper  omcer 
having  jurisdiction  thereof. 

Sec.  1261.  Applicable  to  all  conveyances.  1869-'70,  c. 
185. 

The  two  preceding  sections  shall  apply  to  all  convey- 
ances of  whatever  kind  required  or  allowed  to  be  regis- 
tered. 

Holmes  v.  Marshall,  72—37. 

Sec.  1262.  Registration  of  deeds  heretofore  proven  be- 
fore notary  or  clerk  of  superior  court  of  another  state 
validated.    1883,  c.  129,  s.  1. 

All  deeds  and  conveyances  made  for  lands  in  this  state, 
which  have  previous  to  February  fifteenth,  one  thousand 
eight  hundred  and  eighty-three,  been  proven  before  a 
notary  public  or  clerk  of  the  superior  court  of  any  other 
state,  and  such  proof  having  been  duly  certified  by  such 
notary  or  clerk  taking  the  proof  as  aforesaid,  under  the 
official  seal  of  such  notary  public  or  superior  court,  and 
such  deed  or  conveyance  so  proven  and  certified,  with  the 
certificate  of  having  been  registered  in  the  office  of  register 
of  deeds  in  the  book  of  records  thereof  for  the  county  in 
which  such  lands  were  situate  at  the  time  of  the  regis- 
tration of  such  deed  or  conveyance,  shall  be  sufficient 
registration  of  the  same,  and  such  proof  and  registration 
shall  be  adjudged  good  and  vaUd  in  law. 

Sec.  1263.  Evidence  under  preceding  section.    1883,  c. 
129,  s.  2. 

All  deeds  and  conveyances  proven,  certified  and  regis- 
tered as  aforesaid,  or  certified  copies  of  the  same,  may 
be  used  as  evidence  of  title  for  the  lands  on  the  trial  of 
any  suit  in  any  of  the  courts  of  this  state  where  title  to 
the  lands  shall  come  in  controversy,  and  further  registra- 
tion of  such  deeds  and  conveyances  so  proven  and  regis- 
tered shall  not  be  necessary. 

Sec.  1264.  Contract  to  sell  land  and  leases  required  to  be 
in  writing,  must  be  registered.    K.  C,  c.  37,  s.  26. 

All  contracts  to  sell  or  convey  any  lands,  tenements  or 
hereditaments,  or  any  interest  in  or  concerning  them, 
and  all  leases  required  to  be  put  in  writing  upon  due 


502  DEEDS  AND  CONVEYANCES.     [Chap.  27. 

proof  or  ackuowlcdgment  thereof  in  the  manner  in  thi- 
chapter  provided  for  the  conveyance  of  lands,  shall  be 
registered  ni  the  proper  county  within  two  years  from 
the  date  of  such  contracts  or  leases 

Teaguev.Do^ns,  69-280;    Edwards  v.  Thompson,  71-177;    Green  v 
RadroadCo..  73-524;  Toddy.  Outlaw.  79-235;  Mauney  v.  Crowell  8^ 

Sec.  1265.  Infant  trustees,  how  to  convey.  R.  C.  c  37  s 
27.     1821,c.  1116,ss.  1,  2.  ^,<^.^<,s. 

Wheiiever  any  infant  shall  be  seized  or  possessed  of 
any  estate  whatever  m  trust,  whether  by  way  of  mort- 
gage or  othervyise,  for  another  person  who  may  be  enti- 
tled in  law  to  have  a  conveyance  of  such  estate,  or  may 
be  declared  to  be  so  seized  or  possessed,  in  the  course  of 
any  proceeding  ni  the  superior  court,  the  court  may  de- 
cree that  the  intant  shall  convey  and  a.ssure  such  estate 
m  such  manner  as  it  may  direct,  to  such  other  person' 
and  every  conveyance  and  assurance  made  in  puiWiance 
of  such  decree  shall  be  as  effectual  in  law  as  if  made  by 
a  person  of  full  age.  -^ 

Sec.  1266.  Errors  in  registration  of  deeds,  &c.,  corrected 
on  petition;  appeal  allowed.  R.  C,  c.  37,  s.  28  1 790 
c.  326,  ss.  2,  3, 4.  '  ' 

Everv  person  who  discovers  that  there  is  an  error  in 
the  registration  of  his  grant,  conveyance,  bill  of  sale  or 
other  instrument  of  writing,  may  prefer  a  petition  to  the 
clerk  of  the  superior  court  of  the  county  in  which  said 
writing  IS  registered,  in  the  same  manner  as  is  directed 
tor  petitioners  to  correct  errors  in  grants  or  patents,  and 
It  on  hearing  the  same  before  said  clerk,  it  ai)pears  that 
errors  have  been  committed,  the  clerk  shall  order  the 
register  of  the  county  to  correct  such  errors  and  make 
the  record  conformable  to^  the  original:  Pruvkled  that 
such  petitioner  shall  have  notified  his  grantor  and  everv 
person  claiming  title  to,  or  having  lands  adjoining  those 
mentioned  in  the  petition,  thirty  days  previous  to  pre- 
ferring the  same:  Pmvidecl  further,  that  any  person  dis- 
satisfied with  the  judgment  may  appeal  to  the  iudge  of 
tlie  superior  court  as  in  other  cases. 

Jon«.s  V,  Physioc,  1  D.  &  B.,  173;  Oldham  v.  Bunk,  85-240. 

Sec.  12C7.  Deeds,  Low  made  when   slierifl-  wlio  sells  dies 
or^ronioves  from  the  state.    R.  C,  c.  37,  s.  30.     1838, 

Whenever  any  sheriff  or  coroner  in  virtue  of  his  office 


Chap.  27.]    DEEDS  AND  CONVEYANCES.  503 

shall  have  sold  any  real  or  personal  estate,  and  shall  go 
out  of  office  before  executing  a  proper  conveyance  there- 
for, he  may  execute  <;he  same  after  his  term  of  office  shall 
have  expired ;  and  whenever  such  officer  shall  die  or  re- 
move from  the  state  before  executing  the  same,  his  suc- 
cessor in  office  shall  execute  such  conveyance,  and  all 
conveyances  thus  executed  shall  be  asvaJid  as  if  made  by 
the  sheriff  or  coroner  who  may  have  made  the  sale:  Pro- 
vided, that  nothing  herein  contained  shall  be  construed 
to  apply  to  the  execution  of  conveyances  of  lands  sold  for 
taxes. 

Harris  v.  Irwin,  7  Ired.,432;  Islcr  v.  Andrews,  66—553;  Taylor  v.  Alien, 
67—346;  Millsaps  v.  McCormick,  71—531;  Edwards  v.  Tipton,  77—323. 

Sec.  1268.  Witnesses  to  deeds  maybe  summoned  to  prove 
them.    K.  C,  c.  37,  s.  31.     1756,  c.  58,  s.  4. 

The  grantee  in  any  deed,  bill  of  sale,  mortgage  or  other 
instrument  requiring  or  allowing  of  registration  may,  at 
his  own  expense,  on  motion  before  the  clerk  of  the  supe- 
rior court  of  the  county  where  the  same  is  required  to  be 
registered,  obtain  a  summons  for  any  one  of  the  sub- 
scribing witnesses  to  such  conveyance,  signed  by  the  said 
clerk  and  directed  to  the  sheriff,  commanding  him  to 
summon  such  witness  to  appear  at  a  certain  time  therein 
named,  and  give  evidence  concerning  the  execution  of 
tlie  conveyance  or  other  writing,  under  the  penalty  of 
forty  dollars;  and  the  sheriff  shall  execute  the  same  at 
least  five  days  before  the  time  to  which  it  is  returnable, 
ancl  make  due  return  thereof;  and  if  any  witness  so  sum- 
moned shall  fail  to  appear,  the  clerk  shall  give  judgment 
and  award  execution  against  him  for  the  penalty  afore- 
said, for  the  use  of  the  party  summouing  him,  in  the  like 
manner  and  under  the  same  rules  as  are  prescribed  in  the 
cases  of  other  witnesses  defaulting. 

See.  1269.   Marriage   settlements   registered,    otherwise 
void  as  to  creditors.    K.  C,  c.  37,  s.  24.     1785,  c.  238, 

s.  1. 

All  marriage  settlements  and  other  marriage  contracts, 
whereby  any  money  or  other  estate  shall  be  secured  to 
the  wife  or  "husband,  shall  be  proved  or  acknowledged 
and  registered  in  the  same  manner  as  deeds  for  lands, 
within  six  months  after  the  making  thereof,  otherwise 
they  shall  be  void  against  creditors. 

Johnson  v.  IMalcolm,  6  .Jou.  Eq.,  120;  Latham  v.  Bowen,  7  Jon.,  337; 
Hughes  V.  Debnam,  8  Jon.,  127;  Cliarlesv.  Kennedy,  04—443;  Tea^ue  7. 
Downs,  69—280. 


504  DEEDS  AND  CONVEYANCES.     [Chap.  27. 

Sec.  1270.  Wliat  marriage  settlements  good  against 
creditors;  how  deficiency  in  property  settled,  made  ui>. 
K.  C„  c.  37,  s.  35.     1785,  c.  238,  s.  2. 

No  marriage  settlement  or  marriage  contract  shall  be 
good  against  creditors  where  a  greater  value  is  secured 
to  the  intended  wife  and  children  of  the  marriage,  or 
either  of  them,  than  the  portion  actually  received  witli 
the  wife  in  marriage,  and  such  estate  as  the  husband  at 
the  time  of  his  marriage  shall  be  possessed  of,  after  de- 
ducting the  just  debts  by  him  then  due  and  owing;  and 
in  case  of  a  suit  upon  any  such  marriage  contract,  where 
a  creditor  shall  be  a  party,  the  burden  of  the  proof  shall 
lie  upon  the  person  claiming  under  such  marriage  con- 
tract: Provided,  that  if  anj^  legacy  shall  be  given  to  the 
wife  in  general  words,  and  not  in  trust,  or  a  distributive 
share  of  any  intestate's  estate  shall  fall  to  her  during  her 
coverture,  and  he  shall  become  entitled  thereto,  such 
legacy  and  distributive  share  (in  case  the  estate  of  the 
husband  and  wife  shall  not  at  the  time  of  the  marriage 
be  of  sufficient  value  to  make  good  the  marriage  con- 
tract) shall  be  held,  deemed  and  taken  as  part  of  the 
portion  received  with  the  wife,  and  shall  be  secured  to 
those  claiming  under  such  marriage  contract. 
Smith  V.  Garey,  3  D.  &  B.  Eq.,  42;  Teague  v.  Downs,  69—280. 


Sec.  1271.    Deeds  of  trust  and  mortgages,  how  discharged 
and  released.    1870-'l,  c,  217,  s.  1. 

Any  deed  of  trust  or  mortgage  which  hath  been  or 
which  hereafter  may  be  registered  in  the  manner  re- 
quired by  this  and  the  preceding  sections,  may  be  dis- 
charged and  released  in  the  following  manner,  to  wit: 
the  trustee  or  mortgagee  or  his  or  her  legal  representa- 
tive, or  the  duly  authorized  agent  or  attorney  of  such 
trustee,  mortgagee  or  legal  representative  may,  in  the 
presence  of  the  register  of  deeds,  acknowledge  the  satis- 
faction of  the  provisions  of  such  trust  or  mortgage, 
whereupon  it  shall  be  the  duty  of  the  register  foi-thwith 
to  make  upon  the  margin  of  the  record  of  such  trust  or 
mortgage  an  entry  of  such  acknowledgment  of  satisfac- 
tion, which  shall  be  signed  by  the  said  trustee,  mortga- 
gee, legal  representative  or  attorney,  and  witnessed  oy 
the  register,  who  shall  also  affix  his  name  thereto,  and 
every  such  entry  thus  acknowledged  and  witnessed  shall 
operate  and  have  the  same  effect  to  release  and  discharge 
all  the  interest  of  such  trustee,  mortgagee  or  representa- 
tive in  such  deed  or  mortgage,  as  if  a  deed  of  release  or 


?L 


Chap.  27.]    DEEDS  AND  CONVEYANCES.  505 

re- conveyance  thereof  had  been  duly  executed  and  re- 
corded. 

Hare  v.  Jernigan,  76 — 471. 

See.  1272.  Mortgages  to  secure  purchase  money  need  not 
be  executed  by  wife.    1868-'9,  c.  204,  s.  1. 

The  purchaser  of  real  estate  who  does  not  pay  the  whole 
of  the  purchase  money  at  the  time  when  he  takes  a  deed 
for  title,  may  make  a  mortgage  for  securing  the  payment 
of  such  purchase  money,  or  such  part  thereof  as  may  re- 
main unpaid,  which  shall  be  good  and  effectual  against 
his  wife  as  well  as  himself,  without  requiring  her  to  join 
in  the  execution  of  such  mortgage  deed. 

Etheridge  v.  Vernoy,  71 — 184. 

Sec.  1273.  Form  of  chattel  mortgage.    1870-'l,  c.  277, 
s.  1. 

Any  person  indebted  to  another  in  a  sum  to  be  secured, 
not  exceeding  at  the  time  of  executing  the  deed  herein 
provided  for,  the  sum  of  three  hundred  dollars,  may  exe- 
cute a  deed  of  trust  in  form  substantially  that  which  fol- 
lows : 

I, ,  of  the  county  of in  the  state  of  North  Carolina, 

am  indebted  to ,  of county,  in  said  state,  in  the  sum 

of dollars  for  -which  he  holds  my  note  to  be  due  the  ....  day  of 

,  A.  D.  18. .,  and  to  secure  the  payment  of  the  same,  I  do  hereby 

convey  to  him  these  articles  of  personal  property,  to  wit: 

but  on  this  special 

trust,  that  if  I  fail  to  pay  said  debt  and  interest  on  or  before  the  ....  day 

of ,  A.  D.  18. .,  then  he  may  sell  said  property,  or  so  much  thereof 

as  may  be  necessary,  by  public  auction  for  cash,  first  giving  twenty 
days'  notice  at  three  public  places,  and  apply  the  proceeds  of  such  sale  to 
the  discharge  of  said  debt  and  interest  on  the  same,  and  pay  any  surplus  to 

me.     Given  under  my  hand  and  seal,  this  ....  day  of ,  A.  D.  18. .. 

[Seal.] 

Provided,  that  no  sale  under  any  chattel  mortgage 
shall  be  made  without  giving  at  least  twenty  days'  notice 
oftime  sale. 

Cotton  V.  Willoughby,  83—75  ;  Harris  v.  Jones,  83—317. 

Sec.  1274.  Deed  of  trust  under  next   preceding  section 
good  when  registered.     1870-'l,  c.  277,  s.  2. 

Such  deed  of  trust  shall  be  good  to  all  intents  and  pur- 
poses when  the  same  shall  be  duly  registered  according 
to  law:  Provided,  the  probate  fee  of  the  clerk  of  the 
superior  court  in  such  cases  shall  be  only  ten  cents,  and 
the  fee  of  the  register  shall  be  twenty  cents,  and  no  other 
fee  or  tax  shall  be  due  on  account  of  the  same. 

22 


S%  DEEDS  AND  CONVEYANCES.     [Chap.  27. 

Sec.  1275.  Conditional  sales  of  personal  property  to  be  in 
writing  and  registered.     1883,  c.  342. 

All  conditional  sales  of  personal  property  in  which  the 
title  is  retained  by  the  bargainor,  shall  be  reduced  to 
writing  and  registered  in  the  same  manner,  for  the  same 
fees  and  with  the  same  legal  effect  as  is  provided  for 
chattel  mortgages. 

Sec.  1276.  In  what  cases  clerks  of  the  superior  court  to 
appoint  trustee.  1869-'70,  c.  188,s.  1.  1873-'4,c.  126, 

s.  1. 

When  any  trustee  of  a  deed  of  trust  has  died,  removed 
from  the  county  where  the  deed  was  executed  and  from 
the  state,  or  in  any  way  become  incompetent  to  execute 
the  said  trust,  the  clerk  of  the  superior  court  of  the  coun- 
ty wherein  the  said  deed  of  trust  was  executed  is  author- 
ized and  empowered,  upon  proceedings  to  which  all  per- 
sons interested  shall  be  made  parties,  to  appoint  some 
discreet  and  competent  person  to  act  as  trustee  and  ex- 
ecute the  said  deed  of  trust  according  to  its  true  intent 
and  meaning,  and  as  fully  as  if  appointed  by  the  parties 
to  the  deed:  Provided,  that  in  all  actions  or  proceedings 
had  under  this  section  prior  to  February  fourteenth,  one 
thousand  eight  hundred  and  seventy-four,  before  the 
clerks  of  the  superior  court  in  which  any  trustee  was  ap- 
pointed to  execute  a  deed  in  trust  where  any  trustee  of  a 
deed  of  trust  has  died,  removed  from  the  county  where 
the  deed  was  executed  and  from  the  state,  or  in  any  Avay 
become  incompetent  to  execute  the  said  trust,  whether 
such  appointment  of  such  trustees  by  order  or  decree,  or 
otherwise,  was  made  upon  the  application  or  petition  of 
any  person  or  persons  ex  parte,  or  whether  made  in  pro- 
ceedings whei-e  all  the  proper  parties  were  made,  are  in 
all  things  confirmed  and  made  valid  so  far  as  regards  the 
parties  to  said  actions  and  proceedings  to  the  same  extent 
as  if  all  proper  parties  had  originally  been  made  in  such 
actions  or  proceedings. 

Guion  V.  Melvin,  69—242. 

Sec.  1277.  Consolidation  of   surveys;    proviso;    common 
surveys  may  be  recorded.    1860-'70,  c.  34,  ss.  1,  2. 

Whenever  any  person  owns  several  tracts  of  land  which 
are  contiguous  or  adjoining,  but  held  under  different 
deeds  and  different  surveys,  it  may  be  lawful  for  any 
such  person  to  have  all  such  bodies  of  land  included  in  one 
common  survey  by  running  around  the  lin:'S  of  the  outer 
tracts,  and.  thereupon  the  possession  of  any  part  of  said 


Chap.  27.]     DEEDS  AND  CONVEYANCES.  607 

land  covered  by  such  common  survey  shall  be  deemed 
and  held  in  law  as  a  possession  of  the  v^iiole  and  every 
part  thereof:  Provided,  that  nothing  in  this  section  shall 
be  construed  to  affect  the  right  or  claims  of  persons  which 
have  already  accrued  to  any  part  of  said  land.  In  all 
cases  where  such  common  surveys  are  made  as  dii-ected 
by  this  section,  the  same  may  be  recorded  and  registered 
as  in  cases  of  deeds,  and  shaU-  be  evidence  in  like 
manner. 


Sec.  1278.  Donations  to  persons  while  in  slaverj'.  1869- 
'70,  c.  77,  s.  1. 
Whenever  it  is  made  to  appear  that  any  gift  or  convey- 
ance has  been  made  to  any  person,  while  a  slave,  of  any 
lands  or  tenements,  whether  the  same  shall  have  been 
conveyed  by  deed  or  parol,  and  the  bargainee  or  donee 
has  been  placed  into  actual  possession  of  the  same,  then 
and  in  that  case  such  gift  or  conveyance  shall  have  the 
force  and  effect  of  transferring  the  legal  title  to  the  said 
lands  and  tenements  to  such  bargainee  or  donee:  Pro- 
vided, such  possession  shall  have  continued  for  the  term 
of  ten  years  prior  to  the  ninth  day  of  March,  one  thou- 
sand eight  hundred  and  seventy:  Provided  further,  that 
any  absence  from  the  premises  from  the  first  day  of  May, 
one  thousand  eight  hundred  and  sixty-one,  to  the  first 
day  of  January,  one  thousand  eight  hundred  and  sixty 
six,  shall  not  be  held  as  an  abandonment  or  discontinu- 
ance of  the  possession:  Provided  also,  that  this  section 
shall  not  affect  the  interest  of  a  bona  fide  purchaser  foi 
value  from  the  grantor  or  bargainor  of  the  lands  or  tene- 
ments in  dispute. 

Buie  V.  Carver,  75 — 559. 

Sec.  1279.  Time  extended  for  registering  grants  of  land 
and  other  instruments.     1870-'l,  c.  180,  s.  1. 

All  grants  of  land  in  the  state,  all  deeds  of  conveyance 
of  the  same,  all  powers  of  attorney,  and  every  other  in- 
strument in  writing,  which  is  required  by  law  to  be  reg- 
istered within  or  by  a  given  time,  and  has  not  been 
proved  and  registered  within  or  by  such  time,  may  be 
proved  and  registered  within  two-  years  after  the  passage 
of  this  code,  under  the  same  rules  and  regulations  as 
heretofore  required  by  law;  and  when  so  proved  and 
registered,  shall  be  as  good  and  valid  to  every  intent  and 
purpose  as  if  they  had  been  duly  proved  and  registered: 
Provided,  that  nothing  herein  contained  shall  be  so  con- 


508 


DESCENTS. 


[Chap.  28. 


strued  as  to  extend  to  mortgages  and  deeds  in  trust  apid 
to  marriage  settlements. 

Sec.  1280.  All  conveyances  of  real  estate  to  be  construed 
to  be  ill  fee  unless  otherwise  expressly  set  forth.  1879, 
c,  148. 

When  real  estate  shall  be  conveyed  to  any  person,  the 
same  shall  be  held  and  construed  to  be  a  conveyance  in 
fee,  whether  the  word  "  heirs"  shall  be  used  or  not,  un- 
less such  conveyance  shall,  in  plain  and  express  words, 
show,  or  it  shall  be  plainly  intended  by  the  conveyance 
or  some  part  thereof,  that  the  grantor  meant  to  convey 
an  estate  of  less  dignity. 

Stell  V.  Barham,  87—63. 


CHAPTER  TWENTY-EIGHT. 
DESCENTS. 


Section. 

1281.  Inheritances  shall  descend  as 

follows : 
Rule. 

1.  Lineal  descent. 

2.  Females  to    inherit  with   males, 

younger  with  older  children, 
children  advanced  to  account 
for  the  same. 

3.  Lineal    defcendants  to  represent 

ancestor. 

4.  Collateral  descent  of  inheritance, 

■when  derived  from  an  an- 
cestor. 

5.  When  not  derived  from  an  an- 

cestor or  his  blood  extinct. 

6.  Half    blood     to     inherit     with 


RuxE. 

whole;  parent  to  inherit  from 
child. 

7.  None    to  inherit  unless  alive  or 

born  within  ten  months. 

8.  When  widow  taken  as  heir. 

9.  Illegitimate    children    to  inherit 

from  mother. 

10.  Illegitimate  children  to  inherit 

from  each  other;  legitimate 
may  inherit  from  them;  dying 
without  issue  mother  to  be 
heir. 

11.  Estates  for  life  not  devised,  to 

be  inheritances. 
13.  Seizin  defined. 
13.  Issue  of  certain  colored  persons 

to  inherit. 

K.  C,  c. 


Sec.  1281.  Inheritances  shall  descend  as  follows. 

38,  s.  1. 
When  any  person  shall  die  seized  of  any  inheritance, 
or  of  any  right  thereto,  or  entitled  to  any  interest  there- 
in, not  having  devised  the  same,  it  shall  descend  under 
the  following  rules: 


Chap.  28.]  DESCENTS.  509 

Rule  1.  Lineal  descent.    R.  C,  c.  38,  s.  1,  Rule  1.     1808, 
c.  739. 

Every  inheritance  shall  lineally  descend  forever  to  the 
issue  of  the  person  who  died  last  seized,  entitled  or  hav- 
ing any  interest  therein,  but  shall  not  lineally  ascend,  ex- 
cept as  hereinafter  provided. 

McKay  V.  Hendon,  3  Mur.,  309;  Jones  v.  Edwards,  8  Jon.,  336;  Sears 
V.  McBrido,  70—153. 

Rule  2.  Females  to  inherit  with  males,  younger  with  older 
children;  children  advanced  in  real  or  personal  estate 
to  account  for  advancements.  R.  C,  c.  38,  s.  1,  Rule 
2.  1784,  c.  204,  s.  2.  1808,  c.  739.  1844,  c.  51,  ss. 
1,  2. 
Females  shall  inherit  equally  with  males,  and  younger 
with  older  children:  Provided,  that  whenever  a  parent 
shall  die  intestate,  having  in  his  or  her  lifetime  settled 
upon  or  advanced  to  any  of  his  or  her  children,  any  real 
or  personal  estate,  such  child  so  advanced  in  real  estate 
shall  be  utterly  excluded  from  any  share  in  the  real  es- 
tate descended  from  such  parent,  except  so  much  thereof 
as  wiU,  when  added  to  the  real  estate  advanced,  make  the 
share  of  him  who  is  advanced  equal  to  the  share  of  those 
who  may  not  have  been  advanced,  or  not  equally  ad- 
vanced. And  any  child  so  advanced  in  personal  estate 
shaU  be  utterly  excluded  from  any  share  in  the  personal 
estate  of  which  the  parent  died  possessed,  except  so  much 
thereof  as  will,  when  added  to  the  personal  estate  ad- 
vanced, make  the  share  of  him  who  is  advanced  equal  to 
the  share  of  those  who  may  not  have  been  advanced,  or 
not  equally  advanced.  And  in  case  any  one  of  the  chil- 
dren shall  have  been  advanced  in  real  estate  of  greater 
value  than  an  equal  share  thereof  which  may  come  to 
the  other  children,  he  or  his  legal  representatives  shaU  be 
charged  in  the  distribution  of  the  personal  estate  of  such 
deceased  parent,  with  the  excess  in  value  of  such  real  es- 
tate so  advanced  as  aforesaid,  over  and  above  an  equal 
share  as  aforesaid.  And  in  case  any  of  the  children  shall 
have  been  advanced  in  personal  estate  of  gi-eater  value 
than  an  equal  share  thereof  which  come  to  the  other  chil- 
dren, he  or  his  legal  representatives  shall  be  charged  in 
the  division  of  the  real  estate,  if  there  be  any,  with  the 
excess  in  value,  which  he  may  have  received  as  afore- 
said, over  and  above  an  equal  distributive  share  of  the 
personal  estate. 

Jolmstou  V.  Johnston,  4  Ired,  Eq,,  9;  Donnell  v.  Mateer,  5  Ired.  Eq.,  7; 
Lamb  v.  Carroll,  6  Ired.,  4;  Headen  v.  Headen,  7  Ired.  Eq.,  159;  Bridgers 


510  DESCENTS.  [Chap.  28. 

V.  Hutchins,  11  Ired.,  68;  Meadows  v.  Meadows,  11  Ired.,  148;  Hardy  v. 
Simp6oa,  Biisb.,  325;  Jc-nkins  v.  Mitchell,  4  Jon.  Eq.,  307;  Dickson  v. 
Coward,  4  Jon.  Eq.,  354;  Banks  v.  Sliannonbouse,  Phil.,  284  McBride  v. 
Patterson,  73—478;  Melvia  v.  Bullard,  83—33. 

Bule  3.  Lineal  de§cendants  to  represent  ancestor.  B.  C, 
c.  38,  Rule  3.     1808,  c.  739. 

The  lineal  dvjscendants  of  any  person  deceased  shall 
represent  their  ancestor,  and  stand  in  the  same  place  as 
the  person  himself  would  have  done  had  he  been  living. 

Clement  v.  Cauble,  2  Jon.  Eq.,  82;  Haynes  v.  Johnson,  5  Jon.  Eq.,  124; 
Johnson  v.  Chesson,  6  Jon.  Eq.,  146;  Harman  v.  Ferrell,  64 — 474;  Dozier 
V.  Grandy,  66—484;  Crump  v.  Faucette,  70—345. 

Bule  4.  Collateral  descent  of  inheritance  when  derived 
from  an  ancestor.  E.  C,  c.  38,  Rule  4.  1808,  c. 
739. 

On  failure  of  lineal  descendants,  and  where  the  inher- 
itance has  been  transmitted  by  descent  from  an  ancestor, 
or  has  been  derived  by  gift,  devise,  or  settlement  from  an 
ancestor,  to  whom  the  person  thus  advanced  would  in  the 
event  of  such  ancestor's  death,  have  been  the  heir  or  one 
of  the  heirs,  the  inheritance  shall  descend  to  the  next 
collateral  relations,  capable  of  inheriting,  of  the  pereon 
last  seized,  who  were  of  the  blood  of  such  ancestor,  sub- 
ject to  the  two  preceding  rules. 

Bell  V.  Dozier,  1  J'ev.,  333;  Felton  v.  Billups,  2  D.  &B.,  308;  Wilkerson 
V.  Bracken,  2  Ired.,  315;  Clement  v.  Cauble,  2  Jon.  Eq.,  83;  Osborne  v. 
Widenhouse,  3  Jon.  Eq.,  238;  McMichael  v.  Moore,  3  Jon.  Eq.,  471;  Cro- 
martie  v.  Kemp,  66 — 383. 

Bule  5.  "When  not  derived  from  an  ancestor  or  his  blood 
extinct.    B.  C,  c.  38,  Bule  5.    1808,  c.  739. 

On  failure  of  lineal  descendants,  and  where  the  inher- 
itance has  not  been  transmitted  by  descent  or  derived  as 
aforesaid  from  an  ancestor,  or  where,  if  so  transmitted 
or  derived,  the  blood  of  such  ancestor  is  extinct,  the  in- 
heritance shall  descend  to  the  next  collateral  relation, 
capable  of  inheriting,  of  the  person  last  seized,  whether 
of  the  paternal  or  maternal  line,  subject  to  the  second  and 
third  rules. 

University  v.  Brown,  1  Ired.,  387:  Gillespie  v.  Foy,  Sired.  Eq.,  380. 

Bule  G.  Half  blood  to  inherit  with  whole;  parent  to  in- 
herit from  child.    B.  C,  c.  38,  Bule  6.     1808,  c.  739. 

Collateral  relations  of  the  half  blood  shall  inherit 
equally  with  those  of  the  whole  blood,  and  the  degrees  of 
relationship  shall  be  computed  according  to  the  rules 


Chap.  28.J  DESCENTS.  511 

which  prevail  in  descents  at  common  law :  Provided,  that 
in  all  cases  where  the  person  last  seized  shall  have  lett  no 
issue  capable  of  inheriting,  nor  brother,  nor  sister, 
nor  issue  of  such,  the  inheritance  shall  vest  in  the 
father  if  living,  and  if  not,  then  in  the  mother  if  hvmg. 

Lawrence  v.  Pitl,  1  Jon.,  344;  McMichael  v.  Moore,  3  Jon.  Kq.,  471;  Lit- 
tle V.  Buie,  5  Jon.  Eq.,  10;  Murphy  v.  Jackson,  5  Jon.  Eq.,  11;  Dozicr  v. 
Grandy,  66—484. 

Rule  7.  None  to  inherit  unless  alive  or  born  within  ten 
months.    R.  C,  c.  38,  Kule  7.     1823,0.1210, 

No  inheritance  shall  descend  to  any  person,  as  heir  of 
the  person  last  seized,  unless  such  person  shall  be  in  life 
at  the  death  of  the  person  last  seized,  or  shall  be  born 
within  ten  lunar  months  after  the  death  of  the  person 
last  seized. 

Britten  v.  Miller,  63—368. 

Kule  8.  When  widow  taken  as  heir.  B.  C,  c.  38,  Kule  8. 
1801,  c.  575,  s.  1. 

When  any  person  shall  die,  leaving  none  who  can 
claim  as  heir  to  him,  his  widow  shaU  be  deemed  his  heir, 
and  as  such  shall  inherit  his  estate. 

Powers  V.  Kite,  83 — 156. 

Kule  9.  Illegitimate  children  to  inherit  from  their 
mother.    K.  C,  c.  38,  Rule  10.    1799,  c.  522. 

When  there  shall  be  no  legitimate  issue,  every  illegiti- 
mate child  of  the  mother,  and  the  descendant  of  any 
•  such  child  deceased,  shall  be  considered  an  heir,  and  as 
such  shall  inherit  her  estate;  but  such  child  or  descend- 
ant shall  not  be  allowed  tu  claim,  as  representing  such 
mother,  any  part  of  the  estate  of  her  kindred,  either  lin- 
eal or  collateral. 

Flintham  v.  Holder,  1  Dev.  Eq.,  345:  Campbell  v.  Campbell,  5  Jon.  Eq., 
246;  Harman  v.  Ferrell,  64—474. 

Kule  10.  Illegitimate  children  to  inherit  from  each  other ; 
legitimate  may  inherit  from  them  ;  dying  without  is- 
sue mother  to  he  heir.    R.  C,  c.  38,  Rule  11. 

Illegitimate  children  shall  be  considered  legitimate  as 
between  themselves  and  their  representatives,  and  their 
estates  shall  descend  accordingly  in  the  same  manner  as 
if  they  had  been  born  in  wedlock.  And  in  case  of  the 
death  of  any  such  child  or  his  issue,  without  leaving  is- 
sue, his  estate  shall  descend  to  such  person  as  would  in- 
herit if  all  such  children  had  been  born  in  wedlock:  Pro- 
vided, that  when  any  illegitimate   child  shall  die  with- 


512  DESCENTS.  [Chap.  28. 

out  issue,  his  inheritance  shall  vest  in  the  mother  in 
tlie  same  manner  as  is  provided  in  rule  six  of  this 
chapter. 

Sawyer  V.  Sawyer,  6  Ired.,  407;  Ehringhaus  v.  Coatwright,  8  Ired.,  39; 
Ivey  V.  Granberry,  66 — 223;  McBryde  v.  Patterson,  78 — il3;  Powers  v. 
Kite,  83—156. 


Kule  11.  Estates  for  life  not  devised,  to  be  inheritances. 
R.  C,  c.  38,  Rule  12. 

Every  estate  for  the  life  of  another,  not  devised,  shall 
be  deemed  an  inheritance  of  the  deceased  owner,  vs^ithin 
the  meaning  and  operation  of  this  chapter. 

McBryde  v.  Patterson,  78—413. 

Rule  12.  Seizin  defined.    R.  C,  c.  38,  Rule  13. 

Every  person,  in  whom  a  seizin  is  required  by  any  of 
the  provisions  of  this  chapter,  shall  be  deemed  to  have 
been  seized,  if  he  may  have  had  any  right,  title  or  inter- 
est in  the  inheritance. 

Rule  13.    Issue  of  certain    colored  persons   to  inherit. 
1879,  c.  73. 

The  children  of  colored  parents  born  at  any  time 
before  the  first  day  of  January,  one  thousand  eight 
hundred  and  sixty-eight,  of  persons  living  together  as 
man  and  wife,  are  hereby  declared  legitimate  children  of 
such  parents  or  either  one  of  them,  with  all  the  rights 
of  heirs-at-law  and  next  of  kin,  with  respect  to  the 
estate  or  estates  of  any  such  parents,  or  either  one  of 
them. 

Sears  v.  McBride,  70—152. 


Chap.  29.]     DIVORCE  AND  ALIMONY. 


513 


CHAPTER  TWENTY-NINE. 


DIVOEOE  AND  ALIMONY. 


Section. 

1283.  Superior  court  to  have  juris- 
diction. 

1383.  What  marriages  may  be  de- 
clared void  on  application  of 
the  parties. 

1284.  What  to  be  declared  void  at 
all  times. 

1285.  For  what  causes  marriages 
may  be  dissolved. 

1286.  What  causes  sufficient  for  di- 
vorce from  bed  and  board. 

1287.  Atfidavits  to  be  filed  with  com- 
plaint; provisos. 

1288.  Material  facts  to  be  tried  by  a 
jury;  provided  if  for  divorce 
on  ground  of  pregnancy  of 
wife  before  marriage,  either 
party  may  testify. 


Section. 

1289.  Venue  in  proceedings  for  di- 
vorce. 

1290.  Alimony  on  divorce  from  bed 
and  board. 

1291.  AWmony  pendente  lite. 

1292.  When  wife  not  suing  for  di- 
vorce is  entitled  to  alimony. 

1293.  Court,  power  to  issue  writ 
where  real  estate  assigned. 

1294.  Security  for  costs  on  appli- 
cation for  divorce  or  alimo- 
ny. 

1295.  Consequences  of  a  divorce  a 
mnculo,  on  the  personal  rela- 
tions of  parties. 

1296.  Consequences  of  divorce  upon 

the  right  to  the  custody  of  th« 
children. 


Sec.  1282.  Superior  court  to  have  jurisdiction.    1868-'9. 
c.  93,  c.  45. 

The  superior  court  shall  have  jurisdiction  on  complaints 
for  divorce  and  alimony,  or  either. 

Irby  V.  Wilson,  1  D.  &  B.  Eq.,  568;  Williamson  v.  Williams,  8  Jon.  Eq., 
446;  Gilmore  v.  Gilmore,  5  Jon.  Eq.,  284;  Smith  v.  Morehead,  6  Jon.  Eq., 
860;  Webber  v.  Webber,  83—280;  King  v.  King,  84—32. 

Sec.  1283.  "What  marriages  may  he  declared  void  on  ap- 
plication of  the  parties.    1871-'2,  c.  193,  s.  33. 

The  superior  court  in  term  time,  on  application  made 
as  by  law  provided,  by  either  party  to  a  marriage  con- 
tracted contrary  to  the  prohibitions  contained  in  chapter 
forty-two,  or  declared  void  by  said  chapter,  may  declare 
such  marriage  void  from  the  beginning,  subject,  never- 
theless, to  the  proviso  contained  in  said  chapter. 

Sec.  1284.  What  to  he  declared  void  at  all  times.    1871- 
'2,  c.  193,  s.  34. 

All  marriages  between  a  white  person  and  a  negro  or 
Indian,  or  between  a  white  person  and  a  person  of  negro 


614  DIVORCE  AND  ALIMONY.      [Chap.  29. 

or  Indian  descent,  to  the  third  generation  inclusive,  shall 
be  absolutely  void  to  all  intents  and  purposes,  and  shall 
be  so  held  and  declared  by  every  court  at  aU  times, 
whether  during  the  hves  or  after  the  deaths  of  the  parties 
thereto;  and  it  shall  not  be  lawful  for  the  issue  of  any 
such  marriage  to  be  legitimated  to  the  supposed  father. 

White  V.  White,  84.-340. 

Sec.  1285.  For  what  causes  marriages  may  be  dissolved, 
1871-'2,  c.  193,  s.  35.     1879,  c.  132. 

Marriages  may  be  dissolved  and  the  parties  thereto 
divorced  from  the  bonds  of  matrimony,  on  application  of 
the  party  injured,  made  as  by  law  provided,  in  the  fol- 
lowing cases: 

(1)  If  either  party  shaU  separate  from  the  other  and 
Uve  in  adultery. 

(2)  If  the  wife  shall  commit  adultery. 

(3)  If  either  party  at  the  time  of  the  marriage  was  and 
still  is  naturally  impotent. 

(4)  If  the  wife  at  the  time  of  the  marriage  be  preg- 
nant, and  the  husband  be  ignorant  of  the  fact  of  such 
pregnancy  and  be  not  the  father  of  the  child  with  which 
the  wife  was  pregnant  at  the  time  of  the  marriage. 

Long  V.  Long,  2  Hawks,  189;  Collier  v.  Collier,  1  Dev.  Eq.,  353;  Scrog- 
gins  V.  ScroL'gins,  3  Dev.,  535;  Moss  v.  Moss,  2  Ired.,  55;  Johnson  v.  Kin- 
cade,  2Ired.  Eq.,  470;  Crump  v.  Morgan,  3  Ired.  Eq.,  91;  Wood  v.  Wood,  5 
Ired.,  674;  Foy  v.  Foy,  13  Ired.,  90;  Smith  v.  Moreliead,  G  Jon.  Eq.,  360; 
Edwards  v.  Edwards,  Phil.,  934;  Barringer  v.  Barringer,  09 — 179;  Home 
V.  Horne,  72—530;  Ibid,  72—101 :  Morris  v.  Morris,  75 — 168;  Long  v.  Long, 
77—304;  Manning  v.  Manning,  79—293;  Jones  v.  Jones,  80—246:  Tew  v. 
Tew,  80-316. 

Sec.  1286.  What  causes  sufficient  for  divorce  from  bed 
and  board.     1871-'2,  c.  193,  s.  36. 

The  superior  court  may  grant  divorces  from  bed  and 
board  on  application  of  the  party  injured,  made  as  by 
law  provided,  in  the  following  cases: 

(1)  If  either  party  shall  abandon  his  or  her  family;  or, 

(2)  Shall  maliciously  turn  the  other  out  of  doors;  or, 

(3)  Shall  by  cruel  or  barbarous  treatment  endanger  the 
hfe  of  the  other;  or, 

(4)  Shall  offer  such  indignities  to  the  person  of  the  other 
as  to  render  his  or  her  condition  intolei-able  and  hfe  bur- 
densome; Of, 

(5)  Shall  become  an  habitual  drunkard. 

McKinnon  V.  McDonald,  4  Jon.  Eq. ,  1 ;    Little  v.  Little,  63— 23;    Davis 


Chap.  29.]     DIVORCE  AND  ALIMONY.  515 

V.  Davis,  68—180;  Smith  v.  Smith,  72—139;  Taylor  v.  Taylor,  76—433; 
Miller  V.  Miller,  78—103;  Pain  v.  Pain,  80—322;  McQueen  v.  McQueen, 
82—471;  Muse  v.  Muse,  84—35;  White  v.  White,  84-840;  Scoggias  v. 
Bcoggins,  85—347. 


Sec.  1287.  Affidavit  to  be  filed  with  complaint;   provisos. 
1868-'9,  c.  93,  s.  46.    1 869-' 70,  c.  184. 

The  plaintifif  in  a  complaint  seeking  either  divorce  or 
ahmony,  or  both,  shall  file  with  his  or  her  complaint  an 
affidavit  that  the  facts  set  forth  in  the  complaint  are 
true  to  the  best  of  affiant's  knowledge  and  belief,  and 
that  the  said  complaint  is  not  made  out  of  levity  or  by 
collusion  between  husband  and  wife;  and  if  for  divorce, 
not  for  the  mere  pm-pose  of  being  freed  and  separated 
from  each  other,  but  in  sincerity  and  truth  for  the  causes 
mentioned  in  the  complaint;  and  the  plaintiff  shall  also 
set  forth  in  such  affidavit,  either  that  the  facts  set  forth 
in  the  complaint,  as  grounds  for  divorce,  have  existed  to 
his  or  her  knowledge  at  least  six  months  prior  to  the 
filing  of  the  complaint;  and  that  complainant  has  been 
a  resident  of  the  state  for  two  years  next  preceding  the 
fihng  of  the  complaint;  or,  if  the  wife  be  the  plaintiff, 
that  the  husband  is  removing,  or  about  to  remove  his 
property  and  effects  from  the  state,  whereby  she  may  be 
disappointed  in  her  alimony.  Provided,  if  any  wife  shall 
file  in  the  otfice  of  the  superior  court  clerk  of  the  county 
where  she  resides  an  affidavit,  setting  forth  the  fact  that 
she  intends  to  file  a  petition  or  bring  an  action  for  di- 
vorce against  her  husband,  and  that  she  has  not  had 
knowledge  of  the  facts  upon  which  said  petition  or 
action  will  be  based  for  six  months,  then  and  in  that  case 
it  shall  be  lawful  for  such  wife  to  reside  separate  and 
apart  from  her  said  husband,  and  to  secure  for  her  owm 
use  the  wages  of  her  own  labor  during  the  time  she  shall 
so  remain  separate  and  apart  from  her  said  husband: 
Provided  further,  that  if  such  wife  shall  fail  to  file  her 
petition  or  bring  her  action  for  divorce  within  thirty  days 
after  the  six  months  shall  have  expired  since  her  knowl- 
edge of  the  facts  upon  which  she  intends  to  file  her  said 
petition  or  bring  her  said  action,  then  she  shall  not  be 
entitled  any  longer  to  the  benefit  of  this  section. 

Anonymous,  1  Hay.,  347;  Spiller  v.  Spiller,  1  Hay.,  483;  Whittington  v. 
Whittington,  2  D.  &  B.,  64;  Wilson  v.  Wilson,  2  D.  &  B.,  377;  Foy  v.  Foy, 
13  Ired.,  90;  Schonwald  v.  Scbonwald,  2  .Ion.  Eq.,  367;  Gaylord  v.  Gay- 
lord,  4  Jon.  Eq.,  74;  Everton  v.  Everton,  5  Jon.,  203;  Edwards  v.  Edwards, 
Phil.,  534;  State  v.  Lytle,  64—255;  Scroggins  v.  Scroggins,  80—318;  Pain 


51fi  DIVORCE  AND  ALIMONY.      [Chap.  29. 

V.  Pain,  80—323;  McQueen  v.  McQueen,  83—471;  Scoggins  v.  Scoggins, 
85—347. 

Sec.  1288.  Material  facts  to  be  triedby  ajury;  proviso.  If 
for  divorce  on  grounds  of  pregnancy,  either  party  may 
testify.    1868-'9,  c.  93,  s.  47.    1879,  c.  132. 

The  material  facts  in  every  complaint  asking  for  a 
divorce  shall  be  deemed  to  be  denied  by  the  defendant, 
whether  the  same  shall  be  actually  denied  by  pleading  or 
not,  and  no  judgment  shall  be  given  in  favor  of  the  plain- 
tiff in  any  such  complaint  until  such  facts  have  been 
found  by  a  jury,  and  on  such  trial  neither  the  husband 
or  wife  shall  be  a  competent  witness  to  prove  the  adultery 
of  the  other,  nor  shall  the  admissions  of  either  party  be 
received  as  evidence  to  prove  such  fact.  Provided,  that 
on  the  trial  of  any  action  for  divorce  on  the  ground  of 
the  pregnancy  of  the  wife  at  the  time  of  the  marriage, 
either  party  may  testify  as  to  any  facts  material  to  such 
issue. 

Taylor  v.  Taylor,  76—433;  Long  v.  Long,  77—304;  "White  v.  White,  84 
—340. 

Sec.  1289.  Venue  in  proceedings  for  divorce.  1871-'2,  c. 
193,  s.  40. 

In  all  proceedings  for  divorce,  the  summons  shall  be 
returnable  to  the  court  of  the  county  in  which  the  ap- 
plicant resides. 

Schonwald  v.  Schonwald,  3  Jon.  Eq.,  367;  Smith  t.  Morehead,  6  Jon. 
Eq.,  360. 

Sec.  1290.  Alimony  on  divorce  from  bed  and  board. 
1871-'2,  c.  193,  s.  37. 

When  any  court  shall  adjudge  any  two  mairied  persons 
divorced  from  bed  and  board,  it  may  also  decree  to  the 
party  upon  whose  application  such  judgment  was 
rendered,  such  alimony  as  the  circumstances  of  the  several 
parties  may  render  necessary;  which,  however,  shall  not 
in  any  case  exceed  the  one  third  part  of  the  net  annual 
income  from  the  estate,  occupation  or  labor  of  the  party 
against  whom  the  judgment  shall  be  rendered. 

Rogers  v.  Vines,  6  Ired.,  293;  Simmons  v.  Simmons,  Phil.  Eq.,  63; 
Schonwald  v.  Schonwald,  Phi).  Eq.,  215;  Wood  v.  Wood,  Phil.,  538;  Little 
V.  Little,  63—22;  Sparks  v.  Sparks,  69—319;  Hodges  v.  Hodges,  83—133. 

Sec.  1291.  AMmony pendente  lite.  1871-'2,  c.  193,  s.  38. 
1883,  c.  67. 

If  any  married  woman  shall  apply  to  a  court  for  a 
divorce  from  the  bonds  of  matrimony,  or  from  bed  and 


Chap.  29.]      DIVORCE  AND  ALIMONY.  517 

board  with  her  husband,  and  shall  set  forth  in  her  com- 
plaint such  facts,  which  upon  application  for  alimony 
shall  be  found  by  the  judge  to  be  true  and  to  entitle  her 
to  the  relief  demanded  in  the  complaint,  and  it  shall  ap- 
pear to  the  judge  of  such  court,  either  in  or  out  of  term, 
by  the  affidavit  of  the  complainant,  or  other  proof,  that 
she  has  not  sufficient  means  whereon  to  subsist  during 
the  prosecution  of  the  suit,  and  to  defray  the  necessary 
and  proper  expenses  thereof,  the  judge  may  order  the 
husband  to  pay  her  such  alimony  during  the  pendency  of 
the  suit  as  shall  appear  to  him  just  and  proper,  having 
regard  to  the  circumstances  of  the  parties;  and  such  order 
may  be  modified  or  vacated  at  any  time,  on  the  applica- 
tion of  either  party  or  of  any  one  interested:  Provided, 
that  no  order  allowing  alimony  pendente  lite  shall  be 
made  unless  the  husband  shall  have  had  five  days'  notice 
thereof,  and  in  all  cases  of  apphcation  for  alimony  pen- 
dente lite  under  this  or  the  succeeding  section,  whether 
in  or  out  of  term,  it  shall  be  admissible  for  the  husband 
to  be  heard  by  affidavit  in  reply  or  answer  to  the  allega- 
tions of  the  complaint.  Provided  further,  that  if  the 
husband  shall  have  abandoned  his  wife  and  left  the  state, 
or  shall  be  in  parts  unknown,  or  shall  be  about  to  remove 
or  dispose  of  his  property  for  the  purpose  of  defeating 
the  claim  of  his  wife,  no  notice  shall  be  necessary. 

Earp  V.  Earp,  1  Jon.  Eq.,  118;  Gaylord  v.  Gaylord,  4  Jon.  Eq.,  74; 
Everton  v.  Everton,  5  Jon.,  202;  Shearin  v.  Shearin,  5  Jon.  Eq.,  233: 
Lynch  v.  Lynch,  Phil.  Eq.,  46;  Simmons  v.  Simmons,  Phil.  Eq.,  63; 
Schonwald  v.  Schonwald,  Phil.  Eq.,  215;  Wood  v.  Wood,  Phil.,  538:  Little 
V.  Little,  68—22;  Sparks  v.  Sparks,  69—319;  Miller  v.  Miller,  75—70; 
Webber  v.  Webber,  79—573  ;  Scroggins  v.  Scroggins,  80—318  ;  Pain  v. 
Pain,  80—333;  Hodges  v.  Hodges,  82—133;  Reeves  v.  Reeves,  82—348; 
Muse  V.  Muse,  84 — 35. 

Sec.  1292.  When  wife  not  suingr  for  divorce  is  entitled  to 
alimony.     1871-'2,  c.  193,  s.  39. 

If  any  husband  shall  separate  himself  from  his  vnfe 
and  fail  to  provide  her  with  the  necessary  subsistence 
according  to  his  means  and  condition  in  life,  or  if  he  shall 
be  a  drunkard  or  spendthrift,  the  wife  may  apply  for  a 
special  proceeding  to  the  judge  of  the  superior  court  for 
the  county  in  which  he  resides,  to  have  a  reasonable  sub- 
sistence secured  to  her  and  to  the  children  of  the  mar- 
riage from  the  estate  of  her  husband,  and  it  shall  be  law- 
ful for  such  judge  to  cause  the  husband  to  secure  so  much 
of  his  estate  as  may  be  proper  according  to  his  condition 
and  circumstances,  for  the  benefit  of  his  said  wife  and 


518  DIVORCE  AND  ALIMONY.      [Chap.  29. 

children,  having  regard  also  to  the  separate  estate  of  the 
wife. 

Joyner  v.  Joyner,  6  Jon.,  322;  Hodges  v.  Hodges,  82 — 122;  Reeves  v. 
Reeves,  82—348. 

Sec.  1293.  Court,  power  to  issue  writ  where  real  estate  is 
assigned.    1868-'9,  c.  123,  s.  1. 

In  all  cases  in  which  the  court  shall  gi-ant  alimony  by 
the  assignment  of  real  estate,  the  court  shall  have  power 
to  issue  a  writ  of  possession  when  necessary  in  the  judg- 
ment of  the  court  to  do  so. 

Sec.  1 294,  Security  for  costs  ou  application  for  divorce  or 
alimony.    1871-'2,  c.  193,  s.  41. 

It  shall  not  be  necessary  for  either  party  to  a  proceed- 
ing for  divorce  or  alimony  to  give  any  undertaking  to  the 
other  party  to  secure  such  costs  as  such  other  party  may 
recover.  The  judge  of  the  court  in  which  any  such 
proceeding  is  pending,  both  before  and  after  judgment 
therein,  may  at  any  time  in  his  discretion,  make  any 
order  respecting  the  payment  of  such  costs  as  may  be  in- 
curred by  the  wife,  either  by  the  husband  or  by  her  from 
her  separate  estate. 

Sec.  1295.  Consequences  of  a  divorce  a  vinculo  on  the  per- 
soual  relations  of  the  parties.    1871-'2,  c.  193,  s.  43. 

After  a  judgment  of  divorce  from  the  bonds  of  matri- 
mony, all  rights  arising  out  of  the  marriage  shall  cease 
and  determine,  and  either  party  may  maiTy  again:  Pro- 
vided, that  no  judgment  of  divorce  shall  render  illegiti- 
mate any  children  in  esse,  or  begotten  of  the  body  of  the 
wife  during  coverture. 

Sec.  1296.  Consequences  of  divorce  upon  the  rig-ht  to  the 
custody  of  the  children.    1871-'2,  c.  193,  s.  46. 

After  the  filing  of  a  complaint  in  any  proceeding  for 
divorce,  whether  from  the  bonds  of  matrimony,  or  from 
bed  and  board,  both  before  and  after  final  judgment 
therein,  it  shall  be  lawful  for  the  judge  of  the  court,  in 
which  such  application  is  or  was  pending,  to  make  such 
orders  respecting  the  care,  custody,  tuition  and  mainten- 
ance of  the  children  of  the  marriage  as  may  be  proper, 
and  from  time  to  time  to  modify  or  vacate  such  orders: 
Provided,  that  no  order  respecting  the  child len  shall  be 
made  on  the  application  of  either  party  without  five 
days'  notice  to  the  other  party,  unless  it  shall  appear  that 
the  party  having  the  posse-ssion  or  control  of  such  children 


Chap.  30.]        DRAINING  LOWLANDS.  519 

has  removed  or  is  about  to  remove  the  children,  or  him- 
self, beyond  the  jurisdiction  of  the  court. 


CHAPTER   THIRTY. 
DRAININa  AND  DAMMmG  LOWLANDS. 


i 


Section. 

1297.  Mode  of  proceeding,  hj  peti- 
tion for  draining  or  damming 
lowlands;  court  to  appoint 
three  commissioners. 

1298.  Duty  of  commsisioners. 

1299.  Shall  report  to  court  on  pay- 
ment of  damages  and  costs; 
easement  to  vest  in  fee;  no 
canal,  ditch  or  dam  made 
through  yard,  &c.,  or  to  injure 
mill,  or  to  create  nuisance  by 
stagnant  water,  &c. 

1300.  Fences  or  paths  across  canal, 
ditch  or  embankment  made 
by  proprietor,  when. 

1301.  Earlh  for  dam,  how  taken; 
owner  of  land  may  adjoin  his 
own  dam,  when. 

1302.  Commissioners  to  designate 
width  of  land  for  use  of  canal, 
&c. ;  width  of  dam  not  to  ex- 
ceed five  times  its  base. 

1303.  Earth  excavated  for  canal,  re- 
moved or  leveled. 

1304.  Proprietor  of  land  not  to  open 
drain  within  thirty  feet  of 
canal. 

1305.  Mode  of  proceeding  to  drain 
into  a  canal,  &c. 

1306.  Commissioners  to  assess  and 
apportion  labor  for  n  pairing 
canals.  &c. ;  report  when  coa- 
flrmed,  to  stand  as  a  judgment 
against  the  parties,  &c. 


Section. 

1307.  Mode  of  proceeding  for  joint 
repairs  of  canals. 

1308.  Persons  failing  to  work,  how 
recovered  against. 

1309.  Assignees,  &c.,  bound  to  repair 
as  original  owners. 

1310.  All  persons  interested  to  con- 
tribute to  repair  dams,  &c. ; 
mode  of  proceeding. 

1311.  In  addition  to  foregoing  sec- 
tions, and  to  provide  for  drain- 
age on  a  large  scale,  canals, 
&c.,  may  be  cut. 

1312.  Court  shall  appoint  com- 
missioners to  examine  and 
report. 

1313.  Commissioners  may  appoint 
surveyor. 

1314.  When  court  to  confirm  re- 
port of  commissioners. 

1315.  Proprietors  declared  a  corpora- 
tion. 

1316.  Corporate  name  and  officers. 

1317.  Owners  and  shares. 

1318.  Obedience  to  laws,  &c. ;  pro- 
viso. 

1319.  Payment  of  dues,  &c. 

1320.  Privileges  of  infants. 

1321.  Damage  to  land. 

1322.  Court  may  dissolve  corpora- 
tion. 

1323.  Court  to  regulate  costs. 

1324.  Proceeding,  a  special  pro- 
ceeding. 


520  DEAINING  LOWLANDS.        [Chap.  30. 

Sec.  1297.  Mode  of  proceeding,  by  petition  for  draining 
or  daniiuiug  lowlands;  court  to  appoint  tliree  com- 
missioners. K.  C,  c.  40,  s.  1.  1795,  c.  436,  s.  1. 
1852,  c.  57,  ss,  1,  2. 

Any  person  owing  pocosin,  swamp  or  flat  lands,  or 
owning  lowlands  subject  to  inundation,  which  cannot  be 
conveniently  drained  or  embanked  so  as  to  drain  off  or 
dam  out  the  water  from  such  lands,  except  by  cutting  a 
canal  or  ditch,  or  erecting  a  dam  through  or  upon  the 
lands  of  other  pei-sons,  may  by  petition  apply  to  the 
superior  court  of  the  county,  in  which  the  lands  sought 
to  be  drained  or  embanked,  or  some  part  of  such  lands  he, 
setting  forth  the  particular  circumstances  of  the  case, 
the  situation  of  the  land  to  be  drained  or  embanked,  to 
what  outlet  and  through  whose  land  he  desii-es  to  drain, 
or  on  what  lands  he  would  erect  his  dam,  and  who  are 
the  proprietors  of  said  lands;  whereupon  a  summons 
shall  be  served  on  each  of  the  proprietors,  and,  on  the 
hearing  of  the  petition,  the  court  shall  appoint  three 
persons  as  commissioners,  who  shall  be  duly  sworn  to  do 
justice  between  the  parties. 

Collins  V.  Haugliton,  4  Ired.,  420;  Stanly  v.  Watson,  11  Ired.,  124; 
Skinner  V.  Nixon,  7  Jon.,  343;  Sliaw  v.  Burfoot,  8  Jon.,  844;  Brooks  v. 
Tucker,  Phil.,  309;  Noifleet  v.  Cromwell,  70—634;  Brown  v.  Keener, 
74—714;  Gamble  v.  McCrady,  75—509;  Pool  v.  Trexler,  76—297;  Burden 
V.  Simmons,  84 — 555. 

Sec.  1298.  Duty  of  commissioners.  R.  C,  c.  40,  s.  2. 
1795,  c.  436,  s.  1.     1852,  c.  57,  ss.  1,  2. 

The  commissioners,  or  a  majority  of  them,  on  a  day  of 
which  each  proprietor  of  land  aforesaid  is  to  be  notified 
at  least  five  days,  shall  meet  on  the  premises  and  view 
the  lands  to  be  drained  or  embanked,  and  the  lands 
through  or  on  which  the  drain  is  to  pass  or  the  embank- 
ment to  be  erected,  and  shall  determine  and  report 
whether  the  lands  of  the  petitioner  can  be  conveniently 
drained  or  embanked  except  through  or  on  the  lands  of 
the  defendants  or  some  of  them;  and  if  they  are  of 
opinion  that  the  same  cannot  be  conveniently  done 
except  through  or  on  such  lands,  they  shall  decide  and 
determine  the  route  of  the  canal,  ditcli  or  embankment, 
the  width  thereof  and  the  depth  or  height,  as  the  case 
may  be,  and  the  manner  in  which  the  same  shall  be  cut 
or  thrown  up,  considering  all  the  circumstances  of  the 
case,  and  providing  as  far  as  possible  for  the  effectual 
drainage  or  embankment  of  the  water  from  the  peti- 
tioner's land,   and  also  securing  the  defendant's  lands 


Chap.  30.]        DRAINING  LOWLANDS.  521 

from  inundation,  and  every  other  injury  to  which  the 
same  may  be  probably  subjected  by  such  canal,  ditch  or 
embankment;  and  they  shall  assess,  for  each  ot  the 
defendants,  such  damage  as  in  their  judgment  wiU  tuliy 
indemnify  him  for  the  use  of  his  land  m  the  mode 
proposed;  but  in  assessing  such  damages,  the  benefat 
shall  be  deducted. 

Brooks  V.  Tucker,  Phil.,  309;  Burden  v.  Simmons,  84—555. 

Sec.  1299.  Shall  report  to  court  on  payment  of  damages 
and  costs ;  easement  to  vest  in  fee  ;  no  canal,  ditch  or 
dam  made  through  yard,  &c.,  or  to  injure  mill,  or  to 
create  nuisance  hy  stagnant  water,  &c.    R.  C,  c.  40,  s. 
3.     1795,  c.  436,  s.  2.     1835,  c.   7.      1853,  c.  57,  ss. 
1.  2. 
The  commissioners  shall  report  in  writing,  under  their 
hands,  the  whole  matter  to  the  court,  which  shall  con- 
firm the  same,  unless  good  cause  be  shown  to  the  con- 
trary; and  on  payment  of  the  damages  and  costs  of  the 
proceedings,  the  court  shall  order  and  decree  that  the 
petitioner  may  cut  the    canal  or  ditch,   or    raise    the 
embankment  in  the  manner  reported  and  determined  by 
the  commissioners;  and  thereupon  the  petitioner  shall  be 
seized  in  fee  simple  of  the  easement  aforesaid:  Provided, 
that,  without  the  consent  of  the  proprietor,  such  canal, 
ditch  or  embankment  shall  not  be  cut  or  raised  through 
or  on  his  yard  or  curtilage,  nor  be  allowed  when  the  same 
shall  injure  any  mill,  by  cutting  off  or  stopping  the 
water  flowing  thereto;  nor  shall  said  dam  be  allowed  so 
as  to  create  a  nuisance  by  stagnant  water,  or  cut  oft  the 
flow  of  useful  springs  or  necessary  streams  of  water,  or 
stop  any  ditches  of  such  proprietor  when  there  is  no 
freshet. 

Collins  V.  Haughton,  4  Ired,  420;  Skinner  v.  Nixon,  7  Jon..  343;  Brooks 
V.  Tucker,  Phil.,  309;  Norfleet  v.  Cromwell,  64r-l;  Norfleet  v.  Cromwell, 
70—634. 

Sec.  1.300.  Fences  or  paths  across  canal,  ditch  or  embank- 
ment, made  by  proprietor,  when.  R.  C,  c.  40,  s.  4. 
1795,  c.  436,  s.  2.     1835,  c.  7.     1852,  c.  57,  ss.  1,  2. 

Any  proprietor,  through  or  on  whose  land  such  canal 
or  ditch  may  be  cut  or  embankment  raised,  may  put  a 
fence  or  make  paths  across  the  same,  provided  the  use- 
fulness thereof  be  not  impaired;  and  the  owner  of  the 
canal,  ditch  or  dam,  his  heirs  and  assigns,  shall  at  all 
times  have  free  access  to  the  same,  for  the  puri)Ose  of 


522  DRAINING  LOWLANDS.        [Chap.  30. 

making  and  repairing;  them;  doing  thereby  no  unneces- 
sary damage  to  the  lands  of  the  proprietors. 

Sec.  1301.  Earth  for  dam,  how  taken  ;  owner  of  land  may 
adjoin  his  own  dam,  when.    K.  C,  e.  40,  s.  5. 

The  earth  necessary  for  the  erection  of  a  dam  may  be 
taken  from  either  side  of  it,  or  wherever  else  the  com- 
missioners may  designate  and  allow.  And  such  dam 
may  be  removed  by  the  proprietor  of  the  land,  his  heii-s 
or  assigns,  to  any  other  part  of  his  lands,  and  he  may 
adjoin  any  dam  of  his  ov^m  thereto,  if  allowed  by  the 
court  on  a  petition,  and  such  proceedings  therein  as  are 
provided  in  this  chapter,  as  far  as  the  same  may  apply 
to  his  case:  Provided,  always,  that  the  usefulness  of 
the  dam  will  not  be  thereby  impaired  or  endangei-ed. 

Sec.  1302.  Commissioners  to  designate  width  of  land  for 
use  of  canal,  &c.;  wldthof  dam  not  to  exceed  live  times 
its  base.    K,  C,  c.  40,  s.  6. 

The  commissioners,  when  they  may  deem  it  necessary, 
shall  designate  the  width  of  the  land  to  be  left  on  each 
side  of  the  canal,  ditch  or  dam,  to  be  used  foi-  the  pro- 
tection and  reparation  thereof,  which  land  shall  be  alto- 
gether under  the  control  and  dominion  of  the  owner  of 
the  canal,  ditch  or  dam,  except  as  aforesaid:  Provided, 
that  in  no  case  shall  a  greater  width  of  land  on  both  sides, 
inclusive  of  a  dam,  be  taken  than  five  times  the  base  of 
such  dam. 


Sec.  1303.  Earth  excavated  for  canal,  removed  or  leveled. 
R.  C,  c.  40,  s.  7. 

The  earth  excavated  from  the  canal  or  ditch  shall  be 
removed  away  or  leveled  as  nearly  as  may  be  with  the 
surface  of  the  adjacent  land,  unless  the  commissioners 
shall  otherwise  specially  allow. 

Sec.  1304.  Proprietor  of  land  not  to  open  drain  within 
thirty  feet  ot  canal.    K.  C,  c.  40,  s.  8. 

The  proprietor  of  any  swamp  or  flat  lands,  through 
which  a  canal  or  ditch  passes  shall  not  have  a  right  to 
open  or  cut  any  drain  within  thirty  feet  thereof,  but  by 
the  consent  of  the  owner.  Such  proprietor,  however, 
and  other  persons  may  cut  into  such  canal  or  ditch  in  the 
manner  hereinafter  provided. 

Brooks  V.  Tucker,  Phil.,  309. 


Chap.  30.]        DRAINING  LOWLANDS.  523 

Sec.  1305.  Mode  of  proceeding  to  drain  into  a  canal,  &c. 
K.  C,  c.  40,  s.  9. 

Any  person  desirous  of  draining  into  the  canal  or 
ditch  of  another  person  as  an  outlet,  may  do  so  in  the 
manner  hereinbefore  provided,  and  in  addition  to  the 
persons  directed  to  be  made  parties,  all  others  shall  be 
jparties  through  whose  lands,  canals  or  ditches  the  water 
to  be  drained  may  pass  till  it  shall  have  reached  the 
furthest  artificial  outlet.  And  the  privilege  of  cuttmg 
into  such  canal  or  ditch  may  be  granted  under  the  same 
rules  and  upon  the  same  conditions  and  restrictions  as 
are  provided  in  respect  to  cutting  the  first  canal  or  ditch: 
Proiided,  that  no  canal  or  ditch  shall  be  allowed  to  be 
cut  into  another,  if  thereby  the  safety  or  utihty  of  the 
latter  shall  be  impaired  or  endangered:  Provided  further, 
that  if  such  impairing  and  danger  can  be  avoided  by  im- 
posing on  the  petitioner  duties  or  labor  in  the  enlarging 
or  deepening  such  canal  or  ditch,  or  otherwise,  the  same 
may  be  done;  but  no  absolute  decree  for  cutting  such 
second  canal  or  ditch  shall  pass  till  the  said  duties  or 
work  so  im])osed  shall  be  performed  and  the  effect  there- 
of is  seen,  so  as  to  enable  the  commissioners  to  determine 
the  matter  whether  such  second  canal  or  ditch  ought  to 
be  allowed  or  not. 

Brooks  V.  Tucker,  Phil.,  309. 

Sec.  1306.  Commissioners  to  assess  and  apportion  labor 
for  repairing  canals,  &c.;  report,  when  conlirmed,  to 
.stand  as  a  judgment  against  tbe  parties,  &c.  K.  C, 
c.  40,  s.  10. 

Besides  the  damages  which  the  commissioners  may 
assess  against  the  petitioner  for  the  privilege  of  cutting 
into  such  canal  or  ditch,  they  shaU  assess  and  apportion 
the  labor  which  the  petitioner  and  defendants  shall 
severally  contribute  towards  repairing  the  canal  or  ditch 
into  or  through  which  the  petitioner  drains  the  water 
from  his  lands,  and  report  the  same  to  court;  which,  when 
confirmed,  shall  stand  as  a  judgment  of  the  court  against 
each  of  the  parties,  his  executors  and  administrators, 
heirs  and  assigns. 

Brooks  V.  Tucker,  Phil.,  309. 

Sec.  1307.  Mode  of  proceeding  for  joint  repairs  of  canals. 

R.  (J.,  c.  40,  s.  11. 

Whenever  the  canals  or  ditches  for  the  reparation  of 

which  more  than   one  person  shall  be  bound  under  the 

provisions  of  the  preceding  section,   shall  need  to  be  re- 


DEAINING  LOWLANDS.        [Chap.  30. 

paii-ed  any  of  the  persons  so  bound  may  notify  the  others 
thereof,  and  of  the  time  he  proposes  to  repair  the  same- 
and  thereupon  each  of  the  persons  shall  jointly  work  on 
the  same  and  contribute  his  proportion  of  labor,  till  the 
same  be  repaii-ed  or  the  work  cease  by  consent. 

Sec.  1308.  Persons  failing  to  work,  how  recovered  against 
R.  C,  c.  40,  s.  12. 

In  case  the  person  so  notified  shaU  make  default,  any 
of  the  others  may  perform  his  share  of  labor  and  recover 
against  him  the  value  thereof,  on  a  notice  to  be  issued  for 
such  default;  m  which  shall  be  stated  on  oath  made  be- 
fore the  clerk  the  value  of  such  labor;  and  unless  good 
cause  to  the  contrary  be  shown  on  the  return  of  the 
notice,  the  court  shall  render  judgment  for  the  same  with 
interest  and  costs. 

Sec.  1309.  Assignees,  &c.,    bound  to   repair  as   original 
owners.    K.  C,  c.  40,  s.  13. 

All  persons  to  whom  may  descend,  or  who  may  other- 
wise own  or  occupy  lands  drained  by  any  canal  or  ditch, 
tor  the  privilege  of  cutting  which  any  labor  for  repaft-ing 
IS  assessed,  shall  contribute  the  same,  and  shall  be  bound 
therefor  to  aU  intents  and  purposes,  and  in  the  same 
manner  and  by  the  same  judgment,  as  the  original  party 
himself  would  be  if  he  occupied  the  land. 

Sec.  1310.  AU  persons  interested  to  contribute  to  repair 
dams,  &c.;  mode  of  proceeding.    R.  c,  c.  40,  s.  14. 

Whenever  there  shall  be  a  dam,  canal,  or  ditch,  in  the 
repairing  and  keeping  up  of  which,  two  or  more  persons 
shall  be  interested  and  receive  actual  benefit  therefi'om 
and  the  duties  and  proportion  of  labor  which  each  one 
ought  to  do  and  perform  therefor  shall  not  lie  fixed  by 
agreement  or  by  the  mode  already  in  this  chapter  pro- 
vided for  assessing  and  apportioning  such  labor,  any  of 
the  parties  may  have  the  same  assessed  and  apportioned 
by  petition  to  the  superior  court  of  the  county  in  which 
such  duties  and  labor,  or  some  part  thereof,  are  to  be  per- 
formed, and  the  proceedings  therein  shall  be  by  com- 
missioners, m  the  manner  in  this  chapter  ah-eady  pro- 
Sec.  1311.  In  .addition  to  the  foregoing  sections,  and  to 

provide  for  drainage  on  a  larger  scale,  canals,  &c.,  may 

be  cut.    1868-'9,  c.  164,  s.  2. 
Any  proprietor  in  fee  of  swamp  lands,  which  cannot  be 


Ohap.  30.]        DRAINING  LOWLANDS.  525 

drained  except  by  cutting  a  canal  through  the  lands  of 
another,  or  other  proprietor  in  fee,  situated  at  a  lower 
(evel  and  which  would  also  he  matenaUy  benehted  by 
the  cutting  of  such  canal,  who  desires  that  said  canal  be 
cut  on  the  terms  on  which  it  is  hereinafter  allowed,  may 
apply  by  petition,  setting  forth  the  facts  to  the  superior 
court  of  the  county  in  which  any  of  the  lands  through 
which  the  canal  will  pass,  may  lie. 

Shawv  Burfoot,  8  Jon.,  344;  Canal  Co.  v.  McAlister,  74-159;  Brown 
V.  Keener,  74—714;  Gamble  v.  McCrady,  75-509;  Pool  v.  Trexler,  76- 
297;  Bunting  V.  Stancill,  79—180;  Durdenv.  Simmons,  84—555. 

Sec.  1313.  Court  shall  appoint  commissioners  to  examine 
and  report.    1868-'9,  c.  164,  s.  3. 

On  the  estabUshment  by  the  petitioner  of  his  allega- 
tions, the  court  shall  appoint  three  persons  as  commis- 
sioners who,  having  been  duly  sworn,  shall  examine  the 
premises  and  inquire  and  report: 

(1)  Whether  the  lands  of  the  petitioner  can  be  con- 
veniently drained,  otherwise  than  through  those  of  some 
other  person ; 

(2)  Through  the  lands  of  what  other  persons  a  canal  to 
drain  the  lands  of  the  petitioner  should  properly  pass, 
considering  the  interests  of  all  concerned; 

(3)  A  description  of  the  .several  pieces  of  lands  through 
which  the  canal  would  pass;  and  the  present  values  of 
such  portions  of  said  pieces  of  lands  as  would  be  benefited 
by  it;  and  the  reasons  for  arriving  at  the  conclusion  as  to 
the  benefit; 

(4)  The  route  and  plan  of  the  canal,  including  its 
breadth,  depth  and  slope,  as  nearly  as  they  can  be  calcu- 
lated, with  all  other  particulars  necessary  for  calculating 
its  cost; 

(5)  The  probable  cost  of  the  canal  and  of  a  road  on  its 
bank,  and  of  such  other  works,  if  any,  as  may  be  neces- 
sary for  its  profitable  use; 

(6)  The  proportion  of  the  benefit,  (after  a  deduction  of 
all  damages,)  which  each  proprietor  would  receive  by  the 
proposed  canal  and  a  road  on  its  bank  if  deemed  necessary, 
and  in  which  each  ought,  in  equity  and  justice,  to  pay  to- 
ward their  constraction  aud  permanent  support. 

(7)  With  their  report  they  shall  return  a  map  explain- 
ing, as  accurately  as  may  be,  the  various  matters  re- 
quired to  be  stated  in  their  report. 


526  DRAINING  LOWLANDS.        [Chap.  30. 

Sec.  1313.  Commissioners  may  appoint  surveyor.    18C8- 
'9,  c.  164,  s.  4. 

The  said  commissioners  may  employ  a  surveyor  to  pre- 
pare the  map  requiied  to  accompany  their  report. 

Sec.   1314.  "When  court  to  confirm   report    of  commis- 
sioners.    1868-'9,  c.  164,  s.  5. 

If  it  appear  that  the  lands  on  the  lower  level  will  be 
increased  in  value  twenty-five  per  cent,  or  upwards  by 
the  proposed  improvement,  within  one  year  after  the 
completion  thereof,  and  that  the  cost  of  making  such 
improvement  will  not  exceed  three-fourths  of  the  present 
estimated  value  of  the  land  to  be  benefited,  and  that  the 
proprietors  of  at  least  one-half  in  value  of  the  land  to  be 
afl'ected,  consent  to  the  improvement,  the  court  may 
confirm  such  report,  either  in  full,  or  with  such  modifica- 
tions therein  as  shall  be  just  and  equitable. 

Sec.  1315.  Proprietors  declared  a  corporation.    1868-'9, 
o.  164,  s.  6. 

Upon  a  final  adjudication,  confirming  the  report,  the 
proprietors  of  the  several  pieces  of  land  adjudged  to  be 
benefited  by  the  improvement,  shall  be  declared  a 
corporation,  of  which  the  capital  stock  shall  be  double 
the  estimated  cost  of  the  improvements,  and  in  w^hich  the 
several  ownei's  of  the  land  adjudged  to  be  benefited,  shall 
be  corporators,  holding  shares  of  stock  in  the  proportions 
in  which  they  are  adjudged  liable  for  the  expense  of 
making  and  keeping  up  the  improvement. 

See.  1316.  Corporate  name  and  officers.    1868-'9,  c.  164, 

s.  7. 
The  person  assessed  to  pay  the  highest  sum  shall  be 
president  of  the  company,  until  another  shall  be  elected; 
he  shall,  or  in  case  of  his  refusal  or  an  unreasonable  delay, 
any  other  stockholder,  may  call  a  meeting  of  the  corpora- 
tors. The  corporators  shall  choose  a  corporate  name, 
elect  a  president  and  such  other  officers  as  may  be 
necessary,  and  make  aU  by-laws  and  regulations  not 
contrary  to  law,  which  may  be  necessary  or  proper  for 
effecting  the  purposes  of  the  coi-poration;  they  shall  fix 
the  number  of  shares  of  stock,  and  assign  to  each 
proprietor  his  proper  number;  they  shall  assess  the  same 
which  shall  be  payable  by  each  proprietor,  and  to  ascer- 
tain the  time  and  mode  of  payment,  in  every  meeting 
each  proprietor  shall  vote  once  for  each  sliare  owned  by 
him. 


Chap.  30.]        DRAINING  LOWLANDS.  527 

Sec.  1317.  Owners  and  shares.    ISGS-'O,  c.  164,  s.  8. 

The  ownership  of  the  shares  of  stock  is  indissolubly 
annexed  to  the  ownership  of  the  pieces  of  land  adjudged 
to  be  benefited  by  the  improvement;  and  such  shares,  or 
a  part  thereof  proportionate  to  the  area  of  such  land  that 
may  descend  or  be  conveyed,  for  any  longer  time  than 
three  years,  shall,  upon  such  descent  or  conveyance, 
descend  and  pass  with  the  land,  even  although  such 
shares  be  not  mentioned  in  the  deed  of  conveyance,  and 
although  their  transfer  be  forbidden  by  such  deed  so  that 
every  owner  of  said  land  in  possession,  except  tenant  for 
a  term  of  years,  not  exceeding  three,  and  every  owner 
in  reversion  or  remainder  after  a  term  not  exceeding 
three  years,  shaU,  during  his  ownership,  be  entitled  to 
all  the  rights  and  privileges  and  be  subject  to  all  the 
obhgalions  and  burdens  of  a  corporator.  Every  at- 
tempted sale  of  shares  otherwise  than  as  annexed  to  the 
land  shall  be  void. 

Sec.  1318.  Obedience  to  laws,  &c.;  proviso.    1868-'9,  c. 
164,  s.  9. 

Every  corporator  shall  be  bound  to  obey  the  lawful 
by-laws  of  the  company,  and  pay  all  dues  lawfully 
assessed  on  him :  Provided,  he  shall  in  no  case  pay  more 
than  his  proportion  of  the  expenses  as  fixed  by  this  chap- 
ter; and  such  dues  may  be  collected  in  the  corporate 
name  in  any  court  having  jurisdiction;  and  every  assess- 
ment duly  docketed  in  the  county  where  the  land  to  be 
afifected  lies,  shall  be  a  lien  on  the  lands  of  the  debtor 
which  are  connected  with  the  corporation  from  the  date 
of  such  docketing. 

Sec.  1319.  Payment  of  dues,  &c.    1868-'9,  o.  164,  s.  10. 

Every  corporator,  paying  his  dues  legally  assessed  with- 
out regard  to  the  number  of  his  shares,  shall  be  entitled 
to  the  full  and  free  use  of  said  canal  for  drainage  and  nav- 
igation, and  of  the  road  for  passage  and  transportation. 
By-laws  may  be  made  to  regnilate  these  rights,  but  not  so 
as  to  produce  an  inequality. 

Sec.  1320.  Privileges  of  infants.    1868-'9,  c.  164,  s.  11. 

If  any  proprietor  whose  lands  are  adjudged  to  be  ben- 
efited by  a  canal  shall  be  an  infant,  no  process  shall  be 
issued  against  him  during  his  minority,  or  within  twelve 
months  thereafter,  to  enforce  payment  of  any  assess- 
ment, and  he  may,  at  any  time  within  such  twelve 
months,  apply  to  have  any  order,   judgment  or  decree 


628  DRAINING  LOWLANDS.        [Chap.  30. 

made  against  him,  set  aside  as  to  him.  If  the  infant  or 
his  guardian  shall,  during  his  minority,  and  the  twelve 
months  next  thereafter,  pay  the  dues  assessed  on  him,  he 
shall  have  all  the  rights  and  privileges  of  a  corporator  to 
be  exercised  through  his  guardian.  If  the  infant  shall  fail 
to  pay  he  shall  not  have  any  such  rights,  but  if  no  action  to 
set  aside  the  judgment  of  the  court  creating  the  corporation 
shall  have  been  brought  by  him  as  aforesaid,  or  upon  the 
decision  of  such  action  against  him,  he  shall  be  entitled 
to  receive  his  proper  share  of  stock  and  to  possess  all  the 
rights  and  be  bound  by  all  the  liabilities  of  a  corporator, 
including  a  liability  for  assessments  made  during  his 
minority,  but  not  for  interest  on  such,  nor  for  any  pen- 
alty for  their  prior  non-payment. 

Sec.  1321.  Damage  to  lands.    1868-'9,  c.  164,  s.  12. 

If  any  proprietor  of  lands  shall  be  damaged  by  any  im- 
provement proposed,  the  commissioners  shall  so  report, 
and  he  shall  be  entitled  to  be  compensated  as  maybe  just 
by  the  proprietor  whose  lands  are  benefited  in  proportion 
to  the  benefit  to  them  respectively;  but  in  estimating  such 
damage  the  benefit  shall  be  deducted,  and  such  proprietor 
shall  be  entitled  to  all  the  rights  and  privileges  of  a  cor- 
poration as  respects  the  use  of  the  improvement,  but 
shall  not  be  entitled  to  a  vote,  or  be  bound  for  the  assess- 
ment. 

Sec.  1322.  Court  may  dissolve  corporation.    18G8-'9,  c. 
164,  s.  13. 

If,  from  any  cause,  the  canal  or  other  improvement 
shall  become,  or  shall  prove  to  be  valueless,  any  corpora- 
tor may  apply  as  is  provided  in  other  cases  of  special  pro- 
ceedings, and  the  court  may  dissolve  the  corporation  ci-e- 
ated  in  connection  with  it. 

Sec.  1323.  Court  to  regulate  costs.    1868-'9,  c.  164,  s.  14. 

In  all  proceedings  under  this  chapter,  the  costs,  includ- 
ing one  dollar  and  fifty  cents  per  diem  to  each  commis- 
sioner, shall  be  in  the  discretion  of  the  court,  unless 
otherwise  herein  provided. 

Sec.  1324.  Proceeding,  a  special  proceeding. 

The  proceeding  under  this  chapter  shall  be  the  same  as 
prescribed  in  other  cases  of  special  proceeding. 


Chap.  31.] 


ESTATES. 


CHAPTER  THIRTY-ONE. 
ESTATES. 


Section. 

1325.  Estates  in  tail  converted  into 
fee  simple. 

1326.  In  joint  tenancy,  the  share  of 
deceased  co-teniint  not  to  vest 
in  survivor;  proviso  as  to  part- 
ners in  trade. 

1327.  Certain  contingent  limitations 
in  deeds  or  wills,  how  con- 
strued, if  made  since  the  fif- 
teenth of  Junuary,  one  thou 
sand  eight  hundred  and  twen- 
ty eight. 

1328.  Infant  unborn  may  take  by 
deed,  &c. 

1329.  Limitation  to  the  heirs  of  a 
living  person  to  be  to  his  chil- 
dren. 


Section. 

1330.  In  conveyance  to  uses,  pos- 
session transferred  to  use  with- 
out livery. 

1331.  Grantees  of  reversions  to  have 
such  rights  against  tenants  for 
life  or  years,  as  grantors  had. 

1333.  Such  tenants  to  have  same 
rights  against  grantees  of  re- 
versions, as  against  the  grant- 
ors. 

1333.  Buying  and  selling  pretended 
rights  or  titles  prohibited. 

1334.  Collateral  and  certain  other 
warranties  made  void;  to  stand 
as  covenants  only. 

1335.  Property  held  in  trust;  so  held 
not  liable  for  debts;  proviso. 


Sec.  1325.  Estates  in  tail  converted  into  fee  simple.    R. 
C,  0.43,  s.  1.     1784,0.204,8.5. 

Every  person  seized  of  an  estate  in  tail  shall  be  deemed 
to  be  seized  of  the  same  in  fee  simple;  and  all  sales  and 
conveyances,  made  bona  fide  and  for  valuable  considera- 
tion, since  the  first  day  of  January,  in  the  year  of  our 
Lord  one  thousand  seven  hundred  and  seventy- seven,  by 
any  tenant  in  tail  in  actual  possession  of  any  real  estate 
where  such  estate  hath  been  conveyed  in  fee  simple,  shall 
be  good  and  effectual  in  law  to  bar  any  tenant  in  tail  and 
in  remainder,  of  and  fiom  all  claim,  action  and  right  of 
entry  whatsoever,  of,  in,  and  to  such  entailed  estate, 
against  any  purchaser,  his  heirs,  or  assigns,  now  in  act- 
ual possession  of  such  estate,  in  the  same  manner  as  if 
such  tenant  in  tail  had  possessed  the  same  in  fee  simple. 

Lane  v.  Davis,  1  Hay.,  277  (310);  Minge  v.  Giimour,  1  Hay.,  379  (832); 
Moore  v.  Bradley,  2  Hay.,  142;  Wellsv.  Newbold,  Tay.,  166— (Ed.,  1802). 


Sec.  132G.  In  joint-tenancy,  tlie  share  of  tleoeased  co- 
tenant  not  to  vest  in  survivor;  proviso  as  to  partners 
in  trade.    K.  C,  o.  43,  s.  2.     1784,  c.  204,  ,s.  G. 

In  all  estates,  real  or  personal,  held  in  joint  tenancy, 

23 


S30  ESTATES.  [Chap.  31. 

the  part  or  share  of  any  tenant  djing  shall  not  descend 
or  go  to  the  surviving  tenant,  but  shall  descend  or  be 
vested  in  the  heirs,  executors,  or  administrators,  or  as- 
signs respectively  of  the  tenant  so  dying,  in  the  same 
manner  as  estates  held  by  tenancy  in  common:  Provided, 
that  estates  held  in  joint  tenancy  for  the  purpose  of  car- 
rying on  and  promoting  trade  and  commerce,  or  any 
useful  work  or  manufacture,  estabhshed  and  pursued 
with  a  view^  of  profit  to  the  parties  therein  concerned, 
shall  be  vested  in  the  surviving  partner,  in  order  t©  ena- 
ble him  to  settle  and  adjust  the  partnership  business,  or 
pay  off  the  debts  which  may  have  been  contracted  in  pur- 
suit of  the  said  joint  business;  but  as  soon  as  the  same 
shall  be  effected,  the  survivor  shall  account  with,  and 
pay,  and  deliver  to  the  heirs,  executors,  administrators 
and  assigns  respectively  of  such  deceased  partner,  all 
such  part,  share,  and  sums  of  money  as  he  may  be  en- 
titled to  by  virtue  of  the  original  agreement,  if  any,  or 
according  to  his  share  or  part  in  the  joint  concern,  in  the 
same  manner  as  partnership  stock  is  usually  settled  be- 
tween joint  merchants  and  the  representatives  of  their 
deceased  pai-tners. 

Waugh  V.  Mitcliell,  1  D.  &  B.  Eq.,  510;  Baird  v.  Baud,  1  D.  &  B.  Eq., 
534;  Motley  v.  Whitemore,  2  D.  &  B.,  537;  Ellison  v.  Andrews,  ISIred., 
188;  Todd  v.  Zachary,  Busb.  Eq.,  286;  Vass  v.  Freeman,  3  Jon.  Eq.,  231; 
Bond  V.  Hilton,  6  Jon.,  180;  Patton  v.  Patton,  Winst.  Eq.,  20;  Sum- 
mey  v.  Patton,  Winst.  Eq.,  53:  Stroud  v.  Stroud,  Phil.,  535;  Powell  v. 
Allen,  75 — 450;  Ross  v.  Henderson,  77—170;  McCaskill  v.  Lancasliire, 
83—393;  Blair  v.  Osborne.  84 — 417;  Powell  v.  Morris,  84—421;  Mtmlenliall 
V.  Benbow,  84—646;  Long  v.  Barnes,  87—339. 

Sec.  1337.  Certain  contingent  limitations  in  deeds  or 
wills,  how  construed,  if  made  .since  the  fifteenth  of 
January,  one  thousand  eight  hundred  and  twenty- 
eight,    it.  C,  c.  43,  s.  3.     1827,  c.  7. 

Every  contingent  limitation  in  any  deed  or  will,  made 
to  depend  upon  the  dying  of  any  person  without  heir  or 
heirs  of  the  liody,  or  without  issue  or  issues  of  the  body, 
or  without  children,  or  offspring,  or  descendant,  or  other 
relative,  shall  be  held  and  interpreted  a  limitation  to 
take  effect,  when  such  person  shall  die,  not  having  such 
heir,  or  issue,  or  child,  or  offspring,  or  descendant  or 
otlier  relative  (as  the  case  may  be)  living  at  the  time  of 
his  death,  or  born  to  him  within  ten  lunar  months  there- 
after, unless  the  intention  of  such  hraitation  be  other- 
wise, and  expressly  and  plainly  declared  in  the  face  of 
the  deed  or  will  creating  it:  Provided,  that  the  rule  of 


Chap.  31.]  ESTATES.  631 

construction  contained  in  this  section  shall  not  estend  to 
any  deed  or  will  made  and  executed  before  the  fifteenth 
of  January,  one  thousand  eight  hundred  and  twenty- 
eight. 

ZollicofEer  v.  Zollicoffer,  4  D.  &  B.,  438;  Thompson  v.  Floyd,  4  D.  &  B., 
478:  Tillman  V.  Sinclair,  1  Ired.,  183;  Moore  v.  Barrow,  Sired.,  436;  Brown 
V.  Brown,  3  Ired.,  134;  Swain  v.  Roscoe,  3  Ired.,  200;  Robards  v.  Jones, 
4  Ired.,  53;  State  v.  Skinner,  4  Ired.,  57;  Garland  v.  Watt,  4  Ired.,  287; 
Brantley  v.  Whitaker,  5  Ired.,  225;  Cox  v.  Marks,  5  Ired.,  361;  Ilollowell 
V.  Kornegay,  7  Ired.,  261;  Weatherly  v.  Armfield,  8  Ired.,  25;  Folk  v. 
Whitley,  8  Ired.,  133;  Sanderlin  v.  Deford,  2  Jon.,  74;  Gibson  v.  Gibson, 
4  Jon.,  4a7;  Miller  v.  Churchill,  78— 372;  Bathaway  v.  Harris,  84—96; 
King  V.  Utley,  85—59. 

Sec.  1328.  Infant  unborn  may  take  by  deed,  &c.    K.  C,  c. 
43,  s.  4.    lO,  1 1  W.  IV,  c.  16. 

An  infant  unborn,  but  in  esse,  shall  be  deemed  a  per- 
son capable  of  taking  by  deed  or  other  writing,  any 
estate  whatever  in  the  same  manner  as  if  he  were  born. 


Sec.  1829.  Limitation  to  the  heirs  of  a  living  person  to  be 
to  his  children.    K.  C,  c.  43,  s.  5. 

Any  hmitation  by  deed,  will,  or  other  writing,  to  the 
heirs  of  a  living  person,  shall  be  construed  to  be  to  the 
children  of  such  person,  unless  a  contraiy  intention  ap- 
pear by  the  deed  or  will. 

Miller  v.  Churchill,  78—373;  King  v.  Utley,  85—59;  Patrick  v.  More- 
bead,  85—62, 

Sec.  1330.  In  conveyance  to  uses,  possession  transferred 
to  use  without  livery.  K.  C,  c.  43,  s.  6.  27  Hen. 
VIII,  c.  10. 

By  deed  of  bargain  and  sale,  or  by  deeds  of  lease  and 
release,  or  by  covenant  to  stand  seized  to  use,  or  deed 
operating  by  way  of  covenant  to  stand  seized  to  use,  or 
otherwise,  by  any  manner  or  means  whatsoever  it  be, 
the  possession  of  the  bargainor,  releasor,  or  covenantor 
shall  be  deemed  to  be  transferred  to  the  bargainee,  re- 
leasee, or  person  entitled  to  the  use,  for  the  estate  or  in- 
terest which  such  person  shall  have  in  the  use,  as  per- 
fectly as  if  the  bargainee,  releasee  or  person  entitled  to 
the  use  had  been  enfeoffed  at  common  law  with  livery  of 
seizin  of  the  land,  intended  to  be  conveyed  by  such  deed 
or  covenant. 

Hogan  V.  Strayhorn,  65—279;  Ivey  r.  Granberry,  68 — 223;  Bruce  v. 
Faucett,  4  Jon..  391;  Wilder  v.  Ireland,  8  Jon.,  85. 


632  ESTATES.  [Chap.  31. 

Sec.  1331.  Grantees  of  reversions  to  have  such  rights 
against  tenants  for  life  or  years  as  grantors  liad.  R.  C, 
c.  43,  s.  7.    32  Hen.  VIII,  c.  34,  s.  1.     1868-'9,  c.  156, 

s.  18. 

Whenever  a  conveyance  shall  be  made  by  any  person, 
of  any  reversion  in  lands,  rents,  tenements,  or  heredita- 
ments, which  at  the  time  of  such  conveyance,  shall  be 
held  by  any  other  person  for  a  term  of  life  or  years,  such 
grantee,  his  heirs,  executors,  administrators,  and  assigns, 
shall  have  the  like  advantages  against  the  tenant  for  life, 
and  against  the  tenant  for  years,  his  executors,  adminis- 
trators, and  assigns,  by  entry  for  nonpayment  of  rent 
and  foi-  doing  of  waste,  and  the  same  benefit  and  advan- 
tage and  remedies  by  action  for  the  not  performing  of 
other  conditions,  covenants,  or  agreements,  contained 
and  expressed  in  the  indentures  or  other  agreement,  by 
which  such  tenant  for  life  or  years  hold  the  same  lands, 
tenements,  rents  or  hereditaments  against  said  tenant 
for  life  or  for  years,  his  executoi's,  administrators  and 
assigns,  as  the  grantor  or  lessor  himself  or  his  heirs 
might  have. 

Sec.  1332.  Such  tenants  to  have  same  rights  against 
grantees  of  reversions  as  against  the  grantors.  R.  C, 
c.  43,  s.  8.    32  Hen.  VIII,  c.  34,  s.  2. 

Lessees  and  grantees  of  lands,  rents,  tenements  and 
hereditaments  for  term  of  years  or  life,  their  executors, 
administrators  and  assigns,  shall  have  like  action,  advan- 
tage and  remedy  against  every  person,  his  heirs  and 
assigns,  who  shall  have  any  conveyance  from  any  per- 
son of  the  reversion  of  the  same  lands,  rents,  tenements 
and  heretlitaments,  so  let  or  any  parcel  thereof,  for  any 
condition,  covenant  or  agreement  contained  or  expressed 
in  the  indenture  of  their  leases,  as  the  same  lessees,  or 
any  of  them,  might  and  should  have  had  against  the  said 
lessor  and  grantor,  and  his  heu-s. 

Sec.  1333.  Buying  and  selling  pretended  rights  or  titles 
prohibited.  R.  C,  c.  43,  s.  9.  32  Hen.  VIII,  c.  1),  ss. 
2,  4. 

No  person  shall  buy,  sell  or  obtain  any  pretended 
right  or  title,  or  take  a  promise  or  covenant  to  have  any 
light  01'  title  of  any  person,  in  or  to  any  lands  or  tene- 
ments, (except  such  person  as  shall  sell,  covenant  or 
promise  the  same,  or  they  by  whom  they  claim,  have 
been  in  possession  of  the  same  or  of  the  reversion  or  re- 
mainder thereof,  or  taken  the  rents  and  profits  thereof  one 


Chap.  31.]  ESTATES.  533 

year  next  before  the  bargain  made,)  upon  pain  that  both 
he  that  shall  make  any  such  sale,  promise  or  covenant, 
and  the  buyer,  knowing  the  same,  shall  forfeit  the  value 
of  tho  said  lands— the  one-half  to  the  use  of  the  county 
vi^here  the  lands  are  situated,  the  other  half  to  the  person 
suing  for  the  same:  Provided,  that  any  person  being  in 
the  lawful  possession,  by  taking  the  rents  and  profits  of 
any  tenements,  may  buy  the  pretended  right  of  any 
other  person  to  such  tenements. 

Sec.  1334.  Collateral  and  certain  other  warranties  made 
void;  to  stand  as  covenants  only.  K.  C,  c.  43,  s.  10. 
4  Anne,  c.  16,  s.  21.     1852,  c.  10. 

All  collateral  vi^arranties  are  abolished;  and  all  war- 
ranties rnade  by  any  tenant  for  life  of  lands,  tenements 
or  hereditaments,  the  same  descending  or  coming  to  any 
person  in  reversion  or  remainder  shall  be  void;  and  all 
such  warranties,  as  aforesaid,  shall  be  deemed  covenants 
only,  and  bind  the  covenantor  in  like  manner  as  other 
obligations. 

Johnson  v.  Bradley,  9Ired.,  363;  Moore  v.  Parker,  12  Ired.,  123;  Myers 
V.  Craig,  Busb.,  169;  Soutlierland  v.  Stout,  68—446. 

Sec.  1335.  Property  held  in  trust;  so  held  not  liahle  for 
debts;  proviso.     1871-'3,  c.  204,  s.  1. 

It  shall  and  may  be  lawful  for  any  person  by  deed  or 
will  to  convey  any  property  to  any  other  person  in  trust 
to  receive  and  pay  the  profits  annually  or  oftener  for  the 
support  and  maintenance  of  any  child,  grandchild  or 
other  relation  of  the  grantor,  for  the  life  of  such  child, 
grandchild  or  other  relation,  with  remainder  as  the 
grantor  shall  provide;  and  the  property  so  conveyed 
shall  not  be  liable  for  or  subject  to  be  seized  or  taken  iu 
any  manner  for  the  debts  of  such  child,  grandchild  or 
other  relations,  whether  the  same  be  contracted  or  in- 
curred before  or  after  the  grant:  Provided,  that  this  sec- 
tion shall  apply  only  to  grants  or  conveyances  where  the 
property  conveyed  does  not  yield  at  the  time  of  the  con- 
veyance a  clear  annual  income  exceeding  five  hundred 
dollars. 


634         EVIDENCE.  DEPOSITIONS,  ETC.     [Chap.  32. 


CHAPTER    THIRTY-TWO. 
EVIDENCE,  DEPOSITIONS,  WITNESSES. 


Section. 

1336.  Evidence  necessary  to  support 
title  under  H.  E.  McCulloch. 

1387.  Grant  or  copy  from  proprietor 
sufficient  evidence  of  title  un- 
der him. 

1338.  Evidence  of  the  laws  of  other 
states,  territories  and  coun- 
tries. 

1839.  StiUutes,  how  proved. 

1840.  Otlier  evidence  of  some  acts. 

1341.  Copy  of  survey  from  office  of 
secretary  of  state  good  evi- 
dence. 

1342.  Copies  of  official  writings  com- 
petent evidence. 

1843.  Records  of  administrations  or 
letters  testamentary  in  other 
states,  how  certified. 

1344.  Wills  or  deeds  in  other  states 
proved  by  certified  copies. 

1345.  In  suits  on  bonds  of  officers  or 
trustees,  evidence  against  prin- 
cipals, admissible  against  sure- 
ties. 

1346.  Evidence  in  land  suits  in  Hay 
wood  and  Henderson  counties. 

1347.  Variance  between  execution 
and  judgment  not  to  affect  ti- 
tle of  purchaser. 

1348.  Deeds  registered  and  lost  and 
the  registry  also  destroyed 
presumed  to  have  been  in  due 
form. 

1349.  Evidence  of  counsel  in  cases 
of  fraud  where  the  state  is 
concerned. 

1350.  No  witness  incapacitated  by 
interest  or  crime. 

1351.  Evidence  of  parties  admissi- 
ble. 


Section. 

135a.  Mortuary  tables  evidence. 

1353.  Defendants  in  criminal  pro- 
ceedings competent  in  their 
own  behalf  at  their  own  re- 
quest; husband  or  wife  of  the 
defendant  competent  for  de- 
fendant. 

1354.  Incompetent  evidence,  what. 

1355.  Rules  for  summoning  witness- 
es; subpoena,  how  issued  and 
served. 

1356.  Witnesses  to  attend  from  term 
to  term  till  discharged;  pen- 
alty for  non-attendance;  enti- 
tled to  pay  till  discharged;  no 
executions  to  issue  against  de- 
faulting witness  until  after 
notice. 

13.57.  Depositions,  how  taken. 

1358.  What  depositions  may  be  read 
on  the  trial. 

1359.  Depositions  in  civil  actions  be- 
fore a  justice  of  the  peace. 

1360.  Depositions  not  to  be  quashed 
after  a  trial  has  begun. 

1361.  The  objection  must  be  made 
before  trial. 

1362.  Powers  of  commissioners. 

1363.  Attendance  before  commis- 
sioners, how  enforced. 

1364.  Default  of  witness  before  com- 
missioner. 

1865.  Witness  appearing  before  a 
jury  of  view  or  commissioner 
paid  as  for  attending  court. 

1306.  Subpoenas  to  be  issued  by  clerk 
in  cases  not  provided  for. 

1307.  Witness  while  attending  court 
exempt  from  arrest  iu  civil 
cases. 


Chap.  32.]    EVIDENCE,  DEPOSITIONS,  ETC.  535 


Section. 

liJ68.  Witnesses  not  entitled  to  tlieir 
fees  in  advance. 

1369.  Witness  to  prove  attendance  at 
each  court;  may  recover  pay 
for  attendance. 

1370.  Ticliets  to  Idc  filed  with  clerk 
and  taxed  as  costs;  only  two 
witnesses  allowed  to  prove 
same  fact. 

1371.  After  removal  of  cause  subpcE- 


Section. 

nas  and  commissions  to  take 
depositions  may  issue  from 
either  court. 

1372.  When  a  subpoena  duces  tecum 
may  issue. 

1373.  Courts  may  order  parties  to 
produce  books  or  papers; 
plaintiH  failing  non-suited ;  de- 
fendant failing  judgment  ren- 
dered against  him. 


Sec.  1336.  Evidence  necessary  to  support  title  under  H. 
E.  McCulloch.    R.C.,  c.  44,  s.  1.     1819,  c.  1021. 

In  all  actions  or  suits,  wherein  it  may  be  necessary  for 
either  party  to  prove  title,  by  virtue  of  a  grant  or  grants 
made  by  the  king  of  Great  Britain  or  Earl  Granville 
to  Henry  McCulloch,  or  Henry  Eustace  McCulloch,  it 
shall  be  sufficient  for  such  party,  in  the  usual  manner,  to 
give  evidence  of  the  grant  or  conveyance  from  the  king 
of  Great  Britain  or  Earl  Granville  to  the  said  Henry 
McCulloch,  or  Henry  Eustace  McCulloch,  and  the  mesne 
conveyances  thereafter,  without  giving  any  evidence  of 
the  deed  or  deeds  of  release,  relinquishment  or  confirma- 
tion of  Earl  Granville  to  the  said  Henry  McCulloch,  or 
Henry  Eustace  McCulloch,  or  the  power  or  powers  of  at- 
torney, by  which  the  conveyances  from  the  said  Henry 
McCulloch,  or  Henry  Eustace  McCulloch,  purport  to  have 
been  made. 


Sec.  1337.  Grant  or  copy  from  proprietor,  sufficient  evi- 
dence of  title  under  him.  K.  C,  c.  44,  s.  2.  1807,  c. 
734. 

In  all  trials  where  the  titles  of  either  plaintiff  or  de- 
fendant shall  be  derived  from  Henry  Eustace  McCulloch, 
or  Henry  McCulloch,  out  of  their  tracts  number  one  and 
three,  it  shall  not  be  required  of  such  party  to  produce, 
in  support  of  his  title,  either  the  original  grant  from  the 
crown  to  the  proprietors,  or  a  registered  copy  thereof; 
but  in  all  such  cases,  the  grant  or  deed  executed  by  such 
reputed  proprietors,  or  by  his  or  their  lawful  attorney,  or 
a  certified  copy  thereof,  shall  be  deemed  and  held  suf- 
ficient proof  of  the  title  of  such  proprietors,  in  the  saiiie 
manner  as  though  the  original  grants  were  produced  in 
evidence. 


536         EVIDENCE,  DEPOSITIONS,  ETC.     [Chap.  32. 

Sec.  1338.  Evidence  of  the  laws  of  other  states,  territories 
and  countries.  R.  C,  c.  44,  s.  3.  1823,  c.  1193,  ss.  1, 
3.    C.  C.  P.,  s.  300. 

A  printed  copy  of  a  statute,  or  otlier  written  law,  of 
another  state,  or  of  a  teriitory,  or  of  a  foreign  country, 
or  a  printed  copy  of  a  proclamation,  edict,  decree  oi-  or- 
dinance, by  the  executive  thereof,  contained  in  a  book  or 
publication,  purporting  or  proved  to  have  been  published 
by  the  authority  thereof,  or  proved  to  be  commonly  ad- 
mitted as  evidence  of  the  existing  law,  in  the  judicial 
tribunals  thereof,  shall  be  evidence  of  the  statute,  law, 
proclamation,  edict,  decree,  or  ordinance.  The  unwritten, 
or  common  law  of  another  state,  or  of  a  territory,  or  of  a 
foreign  country,  may  be  proved  as  a  fact  by  oral  evidence. 
The  books  of  the  reports  of  cases,  adjudged  in  the  courts 
thereof,  shaU  also  be  admitted  as  evidence  of  the  unwrit- 
ten or  common  law  thereof.  .A.nd  either  party  may  also 
exhibit  a  copy  of  the  law  of  such  state,  territoiy,  or  for- 
eign country,  duly  certified  by  the  secretary  of  state  of 
this  state  as  having  been  copied  from  a  printed  volume 
of  the  laws  of  such  state,  teri-itory  or  country,  on  file  in 
the  state  library,  or  iu  the  offices  of  the  governor  or  sec- 
retary of  state. 

State  V.  Twitty,  2  Hawks.  441;  State  v.  "Welsh,  3  Hawks,  403;  State  v. 
Jackson,  2  Dev.,  563;  Stale  v.  Patterson,  2  Ired.,  346;  McDougald  v. 
Smith,  11  Ired.,  576. 

Sec.  1339.  Statutes,  how  proved.    R.  C,  c.  44,  s.  4. 

All  statutes,  or  joint  resolutions,  passed  by  the  general 
assembly,  may  be  read  in  evidence  from  the  printed  stat- 
ute book. 

Sec.  1340.  Other  evidence  of  some  acts.  R.  C,  c.  44,  s.  5, 
1826,  c.  7,  s.  2. 

Any  private  act  published  by  Francis  X.  Martin,  in  his 
collection  of  private  acts,  or  a  copy  of  any  act  of  the  gen- 
eral assembly  certified  by  the  secretary  of  state,  shall  be 
received  in  evidence  in  every  court. 

Sec.  1341.  Copy  of  survey  from  office  of  secretary  of  state 
good  evidence.    R.  C,  c.  44,  s.  O.     1822,  c.  1 154. 

Copies  of  the  plots  and  certificates  of  survey,  or  their 
accompanying  warrants,  and  all  abstracts  of  grants, 
which  may  be  filed  in  the  office  of  the  secretary  of  state, 
certified  by  him  as  true  copies,  shall  be  as  good  evidence, 
in  any  court,  as  the  original. 
Tolsou  V.  Mainor,  85—235. 


Chap.  32.]    EVIDENCE,  DEPOSITIOiXS,  ETC.  537 

See    1343.  Copies  of  official  writiiiffs  competent  evidence. 

B.  C,  c.  44,  s.  ».      187  l-'2,  c.  91,  s.  1.     17i)2,  c.  368, 

s.  11. 

Copies  of  all  official  bonds,  ^vritings,  papers,  or  docu- 
ments, recorded  or  filed  as  records  in  any  court  or  public 
office,  or  lodged  in  the  office  of  the  governor,  treasurer 
auditor,  secretary  of  state,  attorney  general  or  adjutant 
general,  shall  be  as  competent  evidence  as  the  originals 
when  certified  by  the  keeper  of  such  records  or  writ  ngs 
under  the  seal  of  his  office,  when  there  is  such  seal  or 
under  his  hand  when  there  is  no  such  seal,  unless  the 
court  shall  order  the  production  of  the  original. 

Governor  v,  McAfee,  2  Dev.,  15;  Clark  v.  Diggs,  6  Ired.,  159;  McLeaa 
V.  Buclianan,  8  Jon.,  444. 

Sec.  1343.  Records  of  administration,  or  letters  testa- 
mentary in  other  states,  how  certified.  R.  C,  c.  44,  s. 
7,     1834,  c.  4.     R.  S.  (U.  S.),  ss.  905,  906. 

When  letters  testamentary  or  of  administration  on  the 
goods  and  chattels  of  any  person  deceased,  being  an  in- 
habitant in  another  state  or  territory,  have  been  granted, 
or  a  return  or  inventory  of  the  estate  has  been  made,  a 
copy  of  the  recoi-d  of  administration  or  of  the  letters  testa- 
mentary, and  a  copy  of  an  inventory  or  return  of  the 
effects  of  the  deceased,  after  the  same  has  been  granted 
or  made,  agreeable  to  the  laws  of  the  state  where  the 
same  has  been  done,  being  properly  certified,  either  ac- 
cording to  the  act  of  congress  or  by  the  proper  officer  ot 
the  said  state  or  territory,  shall  be  allowed  as  evidence. 

■     Sec    1344.  Wills  or  deeds  in  other  states   proved  by  cer- 
tified copies.    R.  C,  c.  44,  s.  9.     1803,  c.  633. 

In  cases  where  inhabitants  of  other  states  or  territories, 
by  win  or  deed,  devise  or  convey  property  situated  m  this 
state  and  the  original  will  or  deed  cannot  be  obtained 
for  registration  in  the  county  where  the  land  lies,  or 
where  the  property  shall  be  in  dispute,  a  copy  of  said 
will  or  deed,  (after  the  same  has  been  proved  and  regis- 
tered or  deposited,  agreeable  to  the  laws  of  the  state 
wher-e  the  person  died  or  made  the  same,)  being  properly 
certified,  either  according  to  the  act  of  congress,  or  by 
the  proper  officer  of  the  said  state  or  territory,  shall  be 
read  as  evidence. 

Knisht  V.  Wall,  3  D.  &  B.,  135;  Miazza  v.  Calloway,  74—31. 


638         EVIDENCE,  DEPOSITIONS,  ETC.     [Chap.  32. 

Sec.  1345.  In  suits  on  bonds  of  officers  or  trustees,  evi- 
dence against  principal  admissible  against  sureties. 
R.  C,  c.  44,  s.  lO.     1881,  c.  8.      1844,  c.  38,  s.  1. 

In  actions  brought  upon  the  official  bonds  of  clerks  of 
courts,  sheriffs,  coroners,  constables,  or  other  public 
officers,  and  also  upon  the  bonds  of  executors,  adminis- 
trators, collectors  or  guardians,  when  it  may  be  necessary 
for  the  plaintiff  to  prove  any  default  of  the  principal 
obligors,  any  receipt  or  acknowledgment  of  such  obligors, 
or  any  other  matter  or  thing  which,  by  law  would  be  ad- 
missible and  competent  for  or  toward  proving  the  same 
as  against  him,  shall  in  like  manner  be  admissible  and 
competent' as  presumptive  evidence  only,  against  aU  or 
any  of  his  sureties  who  may  be  defendants  with  or  with- 
out him  in  said  actions. 

State  V.  Woodside,  8  Ired.,  104;  State  v.  Cauble,  70—62;  State  v.  Pike, 
74—531;  Lewis  v.  Fort,  75—251;   Badger  v.  Daniel,  79—372. 

Sec.  1346.  Evidence  in  land  suits  in  Haywood  and  Hen- 
derson counties.    R.  C,  c.  44,  s.  11.    1842,  c.  60. 

In  aU  legal  controversies  touching  lands  in  the  counties 
of  Haywood  and  Henderson,  in  which  either  party  shall 
claim  title  under  any  sale  for  taxes  alleged  to  have  been 
due  and  laid,  in  and  for  the  year  one  thousand  seven 
hundred  and  ninety-six,  or  aiiy  preceding  year,  the  re- 
cital contained  in  the  deed  or  assurance,  made  by  the 
sheriff  or  other  officer  conveying  or  assuring  the  same,  of 
the  taxes  having  been  laid  and  assessed,  and  of  the  same 
having  remained  due  and  unpaid,  shall  be  held  and  taken 
to  be  prima  facie  evidence  of  the  truth  of  each  and  every 
of  the  matters  so  recited. 

Sec.  1347.  Variance  between  execution  and  judgment 
not  to  affect  title  of  purchaser.  R.  C,  c.  44,  s.  13. 
1848,  c.  53. 

Whenever  property  may  have  been  sold  by  an  officer 
by  virtue  of  any  execution  or  other  process  commanding 
the  sale  thereof,  no  variance  between  the  execution  and 
the  judgment  whereon  the  same  was  issued,  in  the  sum 
due,  in  the  manner  in  which  it  is  due,  or  in  the  time 
when  it  is  due,  shall  invalidate  or  affect  the  title  of  the 
purchaser  of  such  property. 

Lyerly  v.  Wheeler,  11  Ired.,  288;  Green  v.  Cole,  13  Ired.,  425. 

Sec.  1348.  Deeds  registered  and  lost,  and  the  registry 
also  destroyed,  presumed  to  have  been  in  due  form. 
R.  C,  c.  44,  s.  14.     1854,  c.  1 7. 

Whenever  it  shall  be  shown  in  any  judicial  proceeding, 


Chap.  32.]    EVIDENCE,  DEPOSITIONS,  ETC.  539 

that  a  deed  or  conveyance  of  real  estate  has  heen  lost  or 
destroyed,  and  that  the  same  had  been  registered,  and 
that  the  register's  book  containing  the  copy  has  been  de- 
stroyed by  fire  or  other  accident,  so  that  a  copy  thereot 
cannot  be  had,  it  shall  be  presumed  and  held,  unless  the 
contents  be  shown  to  have  been  otherwise,  that  such 
deed  or  conveyance  transferred  an  estate  m  fee-simple,  if 
the  grantor  was  entitled  to  such  an  estate  at  the  time  of 
conveyance;  and  that  it  was  made  upon  sufficient  con- 
sideration. 

Sec.  1349.  Evidence  of  counsel  in  cases  of  fraud  where 
the  state  is  concerned.    1874-'5,  c.  213. 

In  cases  where  fraud  upon  the  state  is  charged  it  shall 
not  be  a  sufficient  cause  to  excuse  any  one  from  impart- 
ing any  evidence  or  information  legally  required  of  him, 
because  he  came  into  the  possession  of  such  evidence  or  in- 
formation by  his  position  as  counsel  or  attorney  before 
the  consummation  of  such  fraud,  and  any  person  refus- 
ing for  such  cause  to  answer  any  question  when  legally 
required  so  to  do  shall  be  guilty  of  contempt,  and  pun- 
ished at  the  discretion  of  the  court  or  other  body  de- 
manding such  information:  Provided,  that  it  shall  not 
be  competent  to  introduce  any  admissions  thus  made  on 
the  trial  of  any  persons  making  the  same. 

Sec.  1350.  No  witness  incapacitated  by  interest  or  crime. 
1866,  c.  43,  ss.  1,  4.    1869-'70,  c.  177.     1871-'2,  c.  4. 

No  person  offered  as  a  witness  shall  be  excluded  by 
•reason  of  incapacity  from  interest  or  crime,  from  giving 
evidence  either  in  person  or  by  deposition,  according  to 
the  practice  of  the  court,  on  the  trial  of  any  issue  joined, 
or  of  any  matter  or  question,  or  on  any  inquiry  arising 
in  any  suit  or  proceeding,  civil  or  criminal,  in  any  court, 
or  before  any  judge,  justice,  jury  or  other  person  having, 
by  law,  authority  to  hear,  receive  and  examine  evidence; 
and  every  person  so  offered  shall  be  admitted  to  give  evi- 
dence, notwithstanding  such  person  may  or  shall  have  an 
interest  in  the  matter  in  question,  or  in  the  event  of  the 
trial  of  the  issue,  or  of  the  suit  or  other  proceedmg  m 
which  he  is  offered  as  a  witness.  This  section  shall  not 
be  construed  to  apply  to  attesting  witnesses  to  wills. 

State  V.  Rose  &  Vaughan,  Phil.,  406;  Rice  v.  Keith,  63-319;  State  y. 
Adair,  68—68;  State  v.  Phipps,  76—203. 


540         EVIDENCE,  DEPOSITIONS,  ETC.     [Chap.  32. 


Sec.   1351.  Evidence  of  parties  admissible.     186C,  c.  43, 
ss.  2,  3. 

On  tlie  trial  of  any  issue,  or  of  any  matter  or  question, 
or  on  any  inquiry  arising  in  ^^y  action,  suit  or  other  pro- 
ceeding in  court,  or  before  any  judge,  justice,  jury  or 
other  pereon  having,  by  law,  authority  to  hear  and  exam- 
ine evidence,  the  parties  themselves  and  the  person  in 
whose  behalf  any  suit  or  other  proceeding  may  be  brought 
or  defended,  shall,  except  as  hereinafter  provided,  be 
competent  and  compellable  to  give  evidence,  either  viva 
voce,  or  by  deposition,  according  to  the  practice  of  the 
court,  in  behalf  of  either  or  any  of  the  parties  to  said 
action,  suit  or  other  proceeding.  Nothing  in  this  section 
shall  be  construed  to  apply  to  any  action  or  other  pro- 
ceeding in  any  court  instituted  in  consequence  of  adul- 
tery, or  to  any  action  for  criminal  conversation. 

Hansley  v.  Hansley,  10  Ired.,  506;  State  v.  Ludwick,  Phil.,  404;  Stale  v. 
Rose  &  Vauglian,  Phil.,  406;  State  v.  Prince,  C3— 509;  Boykin  v.  Boykiu, 
70—263;  Isler  v.  Dewey,  71—14;  State  v.  Phipps,  76—203. 

Sec.  1352.    Mortuary  tables  evidence.    1883,  c.  225. 

In  all  civil  actions,  special  proceedings  or  other  modes 
of  litigation,  whenever  it  shall  be  necessary  to  establish 
the  expectancy  of  continued  life  of  any  person  from  any 
period  of  such  person's  life,  whether  lie  be  living  at  the 
time  or  not,  the  table  hereto  appended  shall  be  received 
in  all  courts  and  by  all  persons  having  power  to  deter- 
mine litigation  as  evidence,  with  other  evidence  as  to 
the  health,  constitution  and  habits  of  such  person,  of 
such  expectancy  represented  by  the  figures  in  the  columns 
headed  by  the  words  "completed  age"  and  "expectation" 
respectively : 


Completed  Age. 
10 

Expectulion. 
43.7 

Completed  Age. 
23 ...... . 

'24 

Expeci.Miou 
40.9 

11 

4S  1 

.      . ..30  5 

12 

47.4 

4r..s 

4(i.2 

4.''.  5 

9.5 

38.8 

13 „ 

14 

2(i 

27 

38.1 

37.4 

15 

'>H . . 

3fi.7 

Hi 

17 

44.0 

44.2 

...  43  5 

29 

30    

36.0 

35  3 

J8 

31 

32 

34.6 

19 

4'>  «) 

33.9 

20 

40  2 

.   41  5 

33     

83  2 

21.... 

34 

32.5 

22....    ... 

40.9 

35 

31.8 

Chap.  82.]    EVIDENCE,  DEPOSITIONS,  ETC.  541 


Completed  Age. 


Expectation. 


36  

. 31.1 

37 

30.4 

38 

39  

29.6 

28.9 

40 

41 

28.2 

27.5 

42  

43 

26.7 

26.0 

44 

25.3 

45 

46  ...... 

..24.5 

23.8 

47  

23.1 

48 

49 

50 

51 

52 

22.4 

21.6 

20.9 

20.2 

19.5 

53  

18.8 

54  

18.1 

55 

17.4 

56 

16.7 

57.... ... 

58 

59 

60 

16.1 

15.4 

14.7 

14.1 

61 

62 

13.5 

12  9 

63 

64 

....  ..12.3 

11.7 

65 

11.1 

Completed  Age. 


66. 

67. 

68. 

69. 

70. 

71. 

73. 

73. 

74. 

75. 

76 

77. 

78 

79. 

80. 

81. 

82. 

83. 

84. 

85. 

86. 

87. 

88. 

89. 

90. 

91. 

92. 

93. 

94. 

95. 


Expectation. 
..  ..10  5 

10.0 

....  9  5 
....  9.0 
....  8.5 
.  ..  8.0 
....  7.6 
....  7.1 
....  6.7 
....  6.3 
..  ..  5.9 
....  5.5 
....  5.1 
....  4.8 
....  4.4 
....  4.1 
....   3.7 

3.4 

....  31 
....  2.8 
....  2.5 
....  2.2 
.  ..  1.9 
.,  ..   1.7 

1.4 

....  1.2 
...  1.0 
....     .8 

6 

5 


Sec.  1353.  Defendants  in  criminal  proceedings  competent 
in  their  own  belialf  at  tlieir  own  request;  liusband  or 
wife  of  defendant  competent  for  defeudaut.  1881,  c. 
89,  s.  3.    1881,  c.  110,  ss.  3,  3. 

In  the  trial  of  all  indictments,  complaints  or  other 
proceedings  against  persons  charged  with  the  commission 
of  crimes,  offences  and  misdemeanors,  the  person  so 
charged  shall  at  his  own  lequest,  but  not  otherwise,  be  a 
competent  witness,  and  his  failure  to  make  such  request 
shall  not  create  any  presumption  against  him.  The  hus- 
band, or  wife  of  the  defendant,  in  all  criminal  actions  or 
proceedings,  shall  be  a  competent  witness  for  the  defend- 
ant; but  the  failure  of  such  witness  to  be  examined  shall 
not  be  used  to  the  prejudice  of  the  defence.     But  every 


5i2         EVIDENCE,  DEPOSITIONS,  ETC.    [Chap.  32. 

such  person  examined  as  a  witness  shall  be  subject  to  be 

cross-examined  as  other  witnesses. 

•    State  V.  Efler,  85—585;  Stirte  v.  Spier,  86—600;  State  v.  Smith,  86—705. 

Sec.  1354.  Incompetent  evidence,  what.  1856-'7,  c.  23. 
18GO,  c.  43,  s.  3.     1868-'9,  c.  209,  s.  4. 

Nothing  in  this  chapter,  except  as  provided  in  the  pre- 
ceding section,  s1iaU  render  any  person,  who  in  a_ny  crim- 
inal proceeding  is  charged  with  the  commission  of  a 
criminal  offence  competent,  or  compellable,  to  give  evi- 
dence against  himself,  nor  shall  render  any  person  com- 
pellable to  answer  any  question  tending  to  criminate 
himself,  nor  shall  in  any  criminal  proceeding  render  any 
husband  competent  or  compellable  to  give  evidence 
against  his  wife,  nor  any  wife  competent  or  compellable 
to  give  evidence  against  her  husband:  Provided,  that  in 
aU  criminal  prosecutions  of  a  husband  for  an  assault  and 
battery  upon  the  person  of  his  wife,  or  for  abandoning 
his  wife,  or  for  neglecting  to  provide  for  her  support,  it 
shall  be  lawful  to  examine  the  wife  in  behalf  of  the  state 
against  the  said  husband. 

State  V.  Ludwick,  Pbil.,401;  State  v.  Eose,  Pbil.,  406;  State  v.  Mooney, 
64—54;  State  v.  Davidsou,  77—522;  Slate  v.  Parrott,  79—615;  Tabor  v. 
Ward,  83—291;  State  v.  Gardner,  84—733;  Stale  v.  Hamlett,  85—520;  State 
V.  Smith,  86—705. 

Sec.  1355.  Kules  for  summoning  witnesses;  sMbpa5na,how 
issued  and  served.  K.  C,  c.  31,  s.  59.  177  7,  c.  115, 
s.  36. 

In  obtaining  the  testimony  of  witnesses  in  causes  de- 
pending in  the  supeiior,  criminal  and  inferior  courts,  the 
following  rules  shall  be  observed  in  practice,  to-wit: 

In  suits  where  witnesses  are  to  appear  at  any  court,  the 
clerk  at  the  instance  of  the  party  shall  issue  a  subpoena, 
directed  to  the  sheriff  or  other  officer  of  the  county  where 
such  witnesses  reside,  mentioning  the  time  and  place  for 
their  appearance,  the  names  of  the  parties  to  the  suit 
wherein  the  testimony  is  to  be  given,  and  the  party  at 
whose  instance  they  are  summoned. 

Every  subpoena  made  returnable  immediately,  shall  be 
issued  only  in  term  time,  and  shall  be  personally  served 
on  the  witness  therem  named. 

A  copy  of  every  subpoena  issued  by  the  clerk  m  vaca- 
tion, in  case  any  witness  therein  named  is  not  to  be  found, 
maybe  left  at  his  usual  place  of  residence;  and  such  copy, 
certified  by  the  sheriff  or  other  officer,  and  left  as  afore- 
said, shaU"  be  deemed  a  legal  summons,  and  the  person 


Chap.  32.]     EVIDENCE,  DEPOSITIONS,  ETC.  543 

therein  named  shall  be  bound  to  appear  in  the  same  man- 
ner as  if  personally  summoned. 


Sec.  1356.  Witnesses  to  attend  from  term  to  term  till  dis- 
charged; penalty  for  non-attendance;  entitled  to  pay 
until  discharged;   no  execution  to   issue  against  de- 
faulting witness  until  after  notice.    R.  C,  c.  31,  ss.  CO, 
61,  62.     1777,  c.   115,  ss.  37,  38,  43.    1799.  c.  528. 
1801,  c.  591. 
Every  witness,  being  summoned  to  appear  in  any  of 
the  said  courts,  in  manner  before  directed,  shall  appear 
accordingly,  and  continue  to  attend  from  term  to  term 
until  discharged;  when  summoned  in  a  civil  suit,  by  the 
court  or  the  party  at  whose  instance  such  witness  shall 
be  summoned;  or  when  summoned  in  a  criminal  prose- 
cution, until  discharged  by  the  court,  the  prosecuting 
officer,  or  the  party  at  whose  instance  he  was  summoned; 
and  in  default  thereof  shall  forfeit  and  pay,  in  civil  cases, 
to  the  party  at  whose  instance  the  subpoena  issued,  the 
sum  of  forty  dollars,  to  be  recovered  by  motion  in  the 
cause,  and  shall  be  further  hable  to  his  action  for  the  full 
damages  which  may  be  sustained  for  the  want  of  such 
witness's  testimony;  or  if  summoned  in  a  criminal  prose- 
cution shall  forfeit  and  pay  eighty  dollars  for  the  use  of 
the  state,  or  the  party  summoning  him. 

Provided,  that  if  the  civil  suit  shall,  in  the  vacation, 
be  accommodated  and  settled  between  the  parties,  and 
the  party  at  whose  instance  such  witness  was  summoned 
should  omit  to  discharge  him  from  further  attendance, 
and  for  want  of  such  discharge,  he  shall  attend  at  the 
next  term,  in  that  case  the  witness,  upon  oath  made  of 
the  facts,  shall  be  entitled  to  a  ticket  from  the  clerk  in 
the  same  manner  as  other  witnesses,  and  shall  recover 
from  the  party,  at  whose  instance  he  was  summoned,  the 
allowance  which  is  given  to  witnesses  for  their  attend- 
ance, with  costs. 

Provided,  further,  that  no  execution  shall  issue  against 
any  defaulting  witness  for  the  forfeiture  aforesaid,  but 
after  notice  made  known  to  him  to  show  cause  against 
the  issuing  thereof ;  and  if  sufficient  cause  be  shown  of 
his  incapacity  to  attend,  execution  shall  not  issue,  and 
the  witness  shall  be  discharged  of  the  forfeiture  without 
costs;  but  otherwise  the  court  shall,  on  motion,  award 
execution  for  the  forfeiture  against  the  defaulting  wit- 
ness. 

EUcrv.  Roberts,  3  Irecl.,  ll;Kinzey  v.  King,  6Ired.,  7fi;  Icehourv.  Mar- 


54i         EVIDENCE,  DEPOSITIONS,  ETC.     [Chap.  32. 

tin.  Busb.,  478;  Ward  v.  Bell,  7  Jon.,  79;  Fite  v.  Lander,  7  Jon..  247; 
Slate  V.  Gwyn,  Phil.,  445. 

Sec.  1357.  Depositions,  how  taken.    K.  C.  c.  31,  s.  63. 
1881,  c.  379. 

Any  party  in  a  civil  action  or  special  proceeding  may 
take  the  depositions  of  persons  whose  evidence  he  may 
desire  to  use,  without  any  special  order  therefor,  unless 
the  witness  shall  be  bevond  the  Umits  of  the  United 
States.  Written  notice  of  the  time  and  place  of  taking 
a  deposition,  specifying  the  name  of  the  witness,  must 
be  served  by  the  party  at  whose  instance  it  is  taken  upon 
the  adverse  party  or  his  attorney.  The  time  for  serving 
such  notice  shall  be  as  follows:  three  entu-e  days  when 
the  party  notified  resides  within  ten  miles  of  the  place 
where  the  deposition  is  to  be  taken;  in  other  cases,  where 
the  party  notified  resides  in  the  state,  one  day  more  for 
every  additional  twenty  miles,  except  where  the  deposi- 
tion is  to  be  taken  within  ten  miles  of  a  railway  in  run- 
ning operation  in  the  state,  when  one  day  only  shall  be 
given  for  every  hundred  miles  of  railway  to  the  place 
where  the  deposition  is  to  be  taken.  When  a  deposition 
is  to  be  taken  beyond  the  state,  ten  days'  notice  of  the 
taking  thereof  shall  be  given,  when  the  party  whose  de- 
position is  to  be  taken  resides  within  ten  miles  of  a  rail- 
way connecting  with  a  line  of  railway  within  twenty 
miles  of  the  place  where  the  person  notified  resides.  In 
other  cases,  where  there  are  no  railways  running  as 
above  specified,  twenty  days'  notice  shall  be  given. 
When  objection  is  taken  to  tlie  reading  of  any  such  de- 
position, upon  the  ground  that  there  are  no  railways  or 
connecting  railways  to  and  from  the  points  specified  in 
this  section,  or  that  the  notice  given  had  otherwise  been 
actually  insuflficient,  it  shall  devolve  upon  the  party  ob- 
jecting to  satisfy  the  court  of  the  truth  of  his  allegation. 
Depositions  shall  be  taken  on  commission,  issuing  from 
the  court  and  under  the  seal  thereof,  by  one  or  more 
commissioners,  who  shall  be  of  kin  to  neither  party,  and 
shall  be  appointed  by  the  clerk.  Depositions  shall  be 
subscribed  and  sealed  up  by  the  commissioners,  and  re- 
turned to  the  court,  the  clerk  whereof  shall  open  and 
pass  upon  the  same,  after  having  first  given  the  parties 
or  their  attorneys  not  less  than  one  day's  notice;  and  all 
such  depositions,  when  passed  upon  and  allowed  by  the 
clerk,  without  appeal,  or  by  the  judge  upon  appeal  from 
the  clerk's  order,  shall  be  deemed  legal  evidence,  if  the 
witness  be  competent. 


Chap.  32.]    EVIDENCE,  DEPOSITIONS,  ETC.  545 

Harris  v.  Peterson,  3  0.  L.  Repos.,  471;  State  v.  Webb,  1  Hay.,  104; 
English  V.  Camp,  1  Hay.,  358;  Ridge's  Orphans  v.  Lewis,  Conf.,  483; 
Ward  V.  Ely,  1  Dev.,  373;  Bedell  v.  State  Banli,  lDev.,483;  Harris  v. 
Yarborough,  4  Dev.,  160;  Barton  v.  Morphis,  4  Dev.,  240;  Duncan  v.  Hill, 
2D.  &B.,  291;  Sloan  v.  Williford,  3  Ired.,  307;  Beasley  v.  Downy,  10 
Irod  ,  284;  McDougald  v.  Smith,  11  Ired.,  576;  Alexander  v.  Walker,  13 
Ired  '  13;  Kea  v.  Robinson,  4  Ired.  Eq.,  427;  Seliorn  v.  Williams,  6  Jon., 
575-  Hix  V.  Fisher,  3  Winst.,  84;  Hill  v.  Bell,  Phil.,  132;  State  ex  rd.  Tid- 
line'v.  Hickerson,  72-431;  Macay,  ezrparU,  84—63;  Burnhardt  v.  Smith, 
86—473. 

Sec.  1358.  What  depositions  may  be  read  on  the  trial. 
B.  C,  c.  31,  s.  63,  1777,  c.  115,  ss.  3t>,  40,  41. 
1803,  c.  633.  1838,  c.  24,  ss.  1,  3.  1836,  c.  30. 
1850,0.  189.    1869-'70,  c.  227,  s.  11.    1881,  c.  279, 

ss.  1,  3.  ,    J   • 

Every  deposition  taken  and  returned  as  prescribed  in 
the  preceding  section,  may  be  read  on  the  trial  of  the 
action  or  proceeding,  or  before  any  referee,  m  the  tol- 
lowing  cases,  and  not  otherwise: 

(1)  If  the  witness  is  dead,  or  has  become  insane  smce 
the  deposition  was  taken;  . 

(2)  If  the  witness  is  a  resident  of  a  foreign  country, 
or  of  another  state,  and  is  not  present  at  the  trial; 

(3)  If  the  witness  is  confmed  in  a  prison  outside  the 
county  in  which  the  trial  takes  place. 

(4)  If  the  witness  is  so  old,  sick  or  infirm  as  to  be 
unable  to  attend  court.  tt  u   i  o^  <- 

(5)  If  the  witness  is  the  president  of  the  United  btates, 
or  the  head  of  any  department  of  the  federal  govern- 
ment, or  a  judge,  district  attorney,  or  clerk  of  any  court 
of  the  United  States,  and  the  trial  shaU  take  place  during 
the  term  of  such  court. 

(6)  If  the  witness  is  the  governor  of  the  state,  or  the 
head  of  any  department  of  the  state  government  or  the 
president  of  the  university,  or  the  head  of  any  other  in- 
corporated college  in  the  state. 

(7)  If  the  witness  is  a  justice  of  the  supreme  court, 
or  a  judge,  presiding  officer,  clerk  or  sohcitor  of  any 
court  of  record,  and  the  trial  shaU  take  place  durmg  the 
terra  of  such  court.  „ 

(8)  If  the  witness  is  a  member  of  the  congress  ot 
the  United  States,  or  a  member  of  the  general  assembly, 
and  the  trial  shall  take  place  durmg  a  session  ot  the 
body  of  which  he  is  a  member.  •  -,        ^     + 

(9)  If  the  witness  has  been  duly  summoned,  and  at 
the  time  of  the  trial,  is  out  of  the  state,  or  is  more  than 


646         EVIDENCE,  DEPOSITIONS,  ETC.     [Chap.  32. 

seventy-five  miles  by  the  usual  public  mode  of  travel 
from  (he  place  wrhere  the  court  is  sitting,  without  the 
procurement  or  consent  of  the  party  offering  his  de- 
position. 

Barnbardt  v.  Smith,  86—473. 


Sec.  1359.  Depositions  in  civil  actions  before  a  justice  of 
the  peace.    1872-'3,  c.  33. 

Any  party  in  a  civil  action  before  a  justice  of  the  peace 
may  take  the  depositions  of  all  persons  whose  evidence 
he  may  desire  to  use  in  the  action;  and  to  do  so,  he  may 
apply  to  the  clerk  of  the  superior  court  for  a  commission 
to  take  the  same,  and  shall  proceed  in  all  tilings  in  taking 
such  depositions  as  if  such  action  was  pending  in  the 
superior  court.  When  any  such  depositions  are  returned 
to  the  clerk,  they  shall  be  opened  and  passed  upon  by 
the  clerk,  and  delivered  to  the  justice  of  the  peace,  before 
whom  the  trial  is  to  be  had;  and  the  reading  and  using 
of  said  depositions  shall  conform  to  the  rules  of  the  su- 
perior court. 

Sec.  1360.  Depositions  not  to  be  quashed  after  a  trial  has 
begun.    1869-'70,  c.  227,  s.  12. 

No  deposition  shaU  be  quashed,  or  rejected,  on  objec- 
tion first  made  after  a  trial  has  begun,  merely  because  of 
an  irregularity  in  taking  the  same,  provided  it  shall  ap- 
pear that  the  party  objecting  had  notice  that  it  had  been 
taken,  and  it  was  on  file  long  enough  before  the  trial  to 
enable  him  to  present  his  objection. 

Carson  v.  Mills,  69—32;  Katzenstein  v.  R.  R.  Co.,  78—286. 


Sec.  1361.    The   objection   must   be   made   before   trial. 
1869-'70,  c.  227,  ss.  13,  17. 

At  any  time  before  the  trial,  or  hearing  of  an  action  or 
proceeding,  any  party  may  make  a  motion  to  the  judge  or 
court  to  reject  a  deposition  for  irregularity  in  the  taking 
of  it,  either  in  whole  or  in  part,  for  scandal,  impertinence, 
the  incompetency  of  the  testimony,  for  insufhcient  notice, 
or  for  any  other  good  cause.  The  objecting  party  shall 
state  his  exceptions  in  writing. 

Street  v.  Bryan,  155-019:  Ilicks  v.  Fisher,  2  Winst.,  84;  Carson  v.  Mills, 
69—32;  Kercliner  v.  Reilly,  72—171;  Katzensteiu  v.  R.  R.  Co.,  78—286; 
Wasson  v.  Liuster.  83—575;  Barnhardt  v.  Smith,  86 — 473. 


Chap.  32.]    EVIDENCE,  DEPOSITIONS,  ETC.  547 

Sec.  1362.  Powers  of  commissioners.  R.  C,  c.  31,  s.  64. 
1777,  c.  15,  s.  43.  1805,  c.  685,  ss.  1,  2.  1848,  c.66. 
1850,  c.  188. 

Commissioners  to  take  depositions,  appointed  by  the 
courts  of  this  state,  or  by  the  courts  of  the  states  or  terri- 
tories of  the  United  States,  arbitrators,  referees,  and  all 
persons  acting  under  a  commission  issuing  from  any  court 
of  record  in  this  state,  are  hei-eby  empowered,  they  or 
the  clerks  of  the  courts  respectively  in  this  state,  to  which 
such  commission  shall  be  returnable,  to  issue  subpoenas, 
specifying  the  time  and  place  for  the  attendance  of  wit- 
nesses before  them,  and  to  administer  oaths  to  said  wit- 
nesses, to  the  end  that  they  may  give  their  testimony. 
And  any  witness,  appearing  before  any  of  the  said  per- 
sons, and  refusing  to  give  his  testimony  on  oath  touching 
such  matters  as  he  may  be  lawfully  examined  unto,  shall 
be  committed,  by  warrant  of  the  person  before  whom  he 
shaU  so  refuse,  to  the  common  jail  of  the  county,  there 
to  remain  until  he  may  be  willing  to  give  his  evidence; 
which  warrant  of  commitment  shall  recite  what  author- 
ity the  person  has  to  take  the  testsmony  of  such  witness, 
and  the  refusal  of  the  witness  to  give  it. 


Sec.  1363.  Attendance  before  commissioner,  how  en- 
forced. R.  C,  c.  31,  s.  65.  1848,  c.  66,  s.  2.  1850,  c 
188,  ss.  1,  2. 

The  sheriff  of  the  county  where  the  witness  may  be,  shall 
execute  all  such  subpoenas,  and  make  due  return  thereof 
before  the  commissioner,  or  other  person,  before  whom 
the  witness  is  to  appear,  in  the  same  manner,  and  under 
the  same  penalties,  as  in  case  of  process  of  a  like  kind 
returnable  to  court;  and  when  the  witness  shall  be  sum- 
moned five  days  before  the  time  of  his  required  attend- 
ance, and  shall  fail  to  appear  according  to  the  precept  and 
give  evidence,  the  default  shall  be  noted  by  the  commis- 
sioner, arbitrator,  or  other  person  aforesaid;  and  in  case 
the  default  be  made  before  a  commissioner  acting  under 
authority  from  courts  without  the  state,  the  defaulting 
witness  shall  forfeit  and  pay  to  the  party  at  whose  in- 
stance he  may  be  summoned  fifty  dollars,  and  on  the 
trial  for  such  penalty,  the  summons  issued  by  the  com- 
missioner, or  other  person  as  aforesaid,  with  the  indorse- 
ment thereon  of  due  service  by  the  officer  serving  the 
same,  together  with  the  default  noted  as  aforesaid  and 
indorsed  on  the  summons,  shall  he  jyrima  facie  evidence 
of  the  forfeiture,  and  sufficient  to  entitle  the  plaintiff  to 


5.tS         EVIDENCE,  DEPOSITIONS,  ETC.     [Chap.  32. 

judgment  for  the  same,  unless  the  witness  may  show  his 
incapacity  to  have  attended. 

Sec.  13G4-  Default  of  witness  before  commissioner.  R. 
C,  c.  31,  .s.  66.  1850,  c.  188,  s.  2. 
But  in  case  the  default  be  made  before  a  commis- 
sioner, arbitrator,  referee  or  other  person,  acting  under 
a  commission  or  authority  from  any  of  the  couits  of  this 
state,  then  the  same  shall  be  certified  under  his  hand, 
and  returned  with  the  subpoena  to  the  court  by  which  he 
was  commissioned  or  empowered  to  take  the  evidence  of 
such  witness;  and  thereupon  the  court  shall  adjudge  the 
defaultmg  witness  to  pay  to  the  party  at  whose  instance 
he  was  summoned,  the  sum  of  forty  dollars;  but  execu- 
tion shall  not  issue  therefor  vmtil  the  same  be  ordered  by 
the  court,  after  such  proceedings  had  as  shall  give  said 
witness  an  opportunity  to  show  cause,  if  he  can,  against 
the  issuing  thereof. 

Sec.  1365.  Witnesses  appearing  before  a  jury  of  view,  or 
commissioner,  paid  as  for  attending  court.  B.  C,  c. 
31,  s.  67.  1805,  c.  685,  ss.  1,  2.  1848,  c.  66,  s.  1. 
1850,  c.  188,  s.  3. 

Witnesses  summoned  to  appear  at  any  survey,  or  be- 
fore any  jury  of  view,  or  before  any  commissioner,  arbi- 
trator, referee,  or  other  person  authorized  to  require  their 
attendance,  shall  be  entitled  to  the  same  fees  as  for 
similar  attendance  at  the  court  of  the  county,  and  may 
prove,  by  their  own  oath,  their  attendance,  mileage,  and 
ferriage  before  such  person,  who  is  hereby  autJiorized 
to  administer  the  oath:  and  when  they  shall  attend  on 
any  commission  issuing  from  without  the  state,  they 
may  recover  the  fees  for  attendance  against  the  party 
sunmioningthem,  or  his  agent  or  attorney  duecting  them 
to  be  summoned;  and  when  they  shall  attend  under  a 
commission  or  authority  from  any  coui-t  in  this  state, 
the  fees  for  attendance  shall  be  proved  as  aforesaid,  and 
bo  certified  to  the  proper  court  and  taxed  as  if  the  wit- 
ness had  attended  tiie  court,  among  the  costs  of  the 
cause;  but  nevertheless,  such  fees  may  be  immediately 
recovered  against  the  party  summoning. 

Moore  v.  Coni'rs,  70—340. 

Sec.  1.366.  Subpoenas  to  be  issued  by  clerk  in  oases  not 
provided  for.    R.  C,  c.  31,  s.  68.    1806,  c.  685,  ss.  1,  2. 

In  all  cases  not  otherwise  provided  for,  when  witnesses 
are  required  to   attend  any  court,  conunission,  referees, 


Chap.  32.]    EVIDENCE,  DEPOSITIONS,  ETC.         549 

order  of  survey,  or  jury  of  view,  a  summons  shall  be  is- 
sued by  the  clerk  of  the  court,  at  the  request  of  either 
party,  expressing  the  day  and  place  when  and  where  they 
are  to  appear,  the  names  of  the  parties  to  the  suit,  and  in 
■whose  behalf  summoned. 

Sec.  13G7.  Witnesses,  while  attending  court,  exempt  from 
arrest  in  civil  cases.  K.  C,  c.  31,  s.  70.  1777,  c.  115, 
s.  44. 

Every  witness  shall  be  exempt  from  arrest  in  civil  cases 
during  his  attendance  at  any  court,  or  before  a  commis- 
sioner, arbitrator,  referee  or  other  person  authorized  to 
command  the  attendance  of  such  witness;  and  during  the 
time  such  witness  is  going  to  and  returning  from  the 
place  of  such  attendance,  allowing  one  day  for  eveiy 
thirty  miles  such  witness  has  to  travel  to  and  from  his 
place  of  residence. 

Haramerskold  v.  Rose,  7  Jon.,  629;  Fentriss  v.  Brown,  Piiil.,  373. 

Sec.  1368.  "Witnesses  not  entitled,  to  their  fees  in  advance. 
1868-'(),  c.  279,  sub  chap.  11,  ss.  3,  4. 

Witnesses  are  not  entitled  to  receive  their  fees  in  ad- 
vance; but  no  witness  in  a  civil  action  or  special  proceed- 
ing, unless  summoned  on  behalf  of  the  stale  or  a  munic- 
ipal corporation,  shall  be  compelled  to  attend  more  than 
one  day,  if  the  party  by  or  for  whom  he  was  summoned, 
shall,  after  one  day's  attendance  on  request  and  presenta- 
tion of  a  certiticate,  fail  or  refuse  to  pay  what  then  may 
be  due,  for  traveling  to  the  place  of  examination,  and  lor 
the  number  of  days  of  attendance. 

Moore  v.  Com'rs,  70 — 340;  Lewis  v.  Com'rs,  74—194;  Bushee  v.  Surles, 
85—90. 

Sec.  1369.  Witness  to  prove  attendance  at  each  court; 
may  recover  pay  for  attendance.  R.  C,  c.  31,  s.  73. 
1777,  c.  115,  s.  46.  1796,  c.  458,  s.  1.  1868-'9,  c. 
279,  s.  c.  11,  s.  21. 

Every  person  summoned,  who  shall  attend  as  a  witness 
in  any  suit,  shall,  befoie  the  clerk  of  the  court,  or  before 
the  referee  or  officer  taking  the  testimony,  ascertain  by 
his  own  oath  or  affirmation  the  sum  due  for  traveling  to 
and  from  court,  attendance  and  ferriage,  which  shall  be 
certified  by  the  clerk;  and  on  failure  of  the  jiarty,  at 
whose  instance  such  witness  was  summoned,  (wilncsses 
for  the  state  and  municipal  corporations  excei)ted.)  to  pay 
the  same  previous  to  the  departure  of  the  witness  from 
court,  such  witness  may  at  any  time  sue  for  and  recover 


550         EVIDENCE,  DEPOSITIONS,  ETC.     [Chap.  32. 

the  same  from  the  party  summoning  him;  and  the  cer- 
tificate of  the  clerk  shall  be  sufficient  evidence  of  the 
debt:  Provided,  that  where  recovery  may  be  had  before 
a  justice  of  the  peace  on  a  witness  ticket,  the  justice  shall 
deface  it  by  writing  the  word  judgment,  and  deliver  the 
same  to  the  person  of  whom  it  is  recovered. 

Mooie  V.  Islcr,  Mar.,  IH;  Thompson  v.  Hodges,  3  Hawks,  318;  Carter  v. 
Wood,  11  Ircd.,  23;  Deaver  v.Com'rs,  80—116;  Belden  v.  Snead,  8-1—243. 

Sec.  1370.  Tickets  to  be  filed  with  clerk,  and  taxed  as 
costs;  only  two  witnesses  allowed  to  prove  same  fact. 
K.  C,  c.  31,  s.  74.  1783,  c.  189,  s.  3.  1790,  c.  458, 
s.  2. 

At  the  court,  where  the  cause  shall  be  finally  deter- 
mined, the  party  recovering  judgment  shall  ille  in  the 
clerk's  office  the  witness  tickets;  the  amount  whereof 
shall  be  taxed  in  the  biU  of  costs,  to  be  levied  and  re- 
covered for  the  benefit  of  said  party:  Provided,  that  the 
party  cast  shall  not  be  obliged  to  pay  for  more  than  two 
witnesses  to  prove  a  single  fact. 

Holmes  v.  Johnson,  11  Ired.,  55;  Woolly  v.  Robinson,  7  Jon.,  30;  Loftin 
v.  Baxter,  66—340;  Porter  v.  Durham,  79—596;  Belden  v.  Snead,  84—243. 

Sec.  1371.    After  removal  of  cause,  subpoenas  and  com- 
missions to  take  depositions    may  issue  from    either 
court.    B.  C,  c.  31,  s.  72.    1810,  c.  787.    1832,  c.  8. 
When  any  cause  shall  be  removed  from  the  superior 
court  of  one  county  to  that  of  another,  after  the  order  of 
removal,   depositions  may  be  taken  in  the  case,   and 
subpoenas  for  the  attendance  of  witnesses  and  commis- 
sions to  take  depositions  may  issue  from  either  of  the 
said  courts,  under  the  same  rules  as  if  the  case  had  been 
originally   commenced  in  the    court    from   which    the 
subpoenas  or  commissions  issued. 

Com'rs  V.  Lemly,  85 — 341. 

Sec.  1372.  When  a  subpoena  duces  tecum  may  issue.  R.  C, 
c.  31,  s.  81.     1797,  c.  47C. 

In  all  causes  depending  in  any  court,  in  which  the  pro- 
duction of  an  original  paper,  lodged  in  any  of  the  public 
offices  of  the  state,  or  in  any  office  of  any  court,  shall 
become  necessary,  the  court  may  issue  the  process  of 
subpoena  duces  tecum,  requiring  such  persons  who 
hold  said  offices  to  attend  the  court  with  such  original 
paper,  in  like  manner  and  under  the  same  penalties  as 
witnesses  are  required  in  cases  of  subpcena  to  testify. 


Chap.  33.] 


EXECUTORS,  ETC. 


551 


Sec.  1373.  Courts  may  order  parties  to  produce  books  or 
papers;  plaintiflf  failing,  non-suited;  defendant  failing, 
judgment  rendered  against  liim.  R.  C,  c.  31,  s.  8a. 
1831,  c.  1095.     1828,  c.  7. 

The  courts  shall  have  full  power,  on  motion  and  due 
notice  thereof  given,  to  require  the  parties  to  produce 
books  or  writings  in  their  possession  or  control  which 
contain  evidence  pertinent  to  the  issue,  and  if  a  plaintiff 
shall  fail  to  comply  with  such  order,  and  shall  not  satis- 
factorily account  for  his  failure,  the  court,  on  motion, 
may  give  the  like  judgment  for  the  defendant,  as  in 
cases  of  non  suit;  and  if  a  defendant  shall  fail  to  comply 
with  such  order,  and  shall  not  satisfactorily  account  for 
his  failure,  the  court,  on  motion  as  aforesaid,  may  give 
judgment  against  him  by  default. 

Graham  v.  Hamilton,  3  Ired.,  381;  McGibboney  v.  Mills,  13  Ired.,  163; 
Branson  v.  Fentress,  13  Ired.,  165;  Fuller  v.  McMillan,  Busb.,  206;  Ward 
V.  Simmons,  1  Jon.,  404;  Murcliison  v.  McLeod,  2  Jon.,  239;  Maxwell 
V.  McDowell,  6  Jon.,  301;  Justice  v.  Bank,  83—8;  McLeod  v.  BuUard, 
84—515;  Com'rav.  Lemly,  85—341. 


CHAPTEE  THIRTY-THREE. 


EXEOUTOES  AND  ADMINISTKATOES. 


Sbction. 

1374.  When  clerk  of  the  superior 
court  has  jurisdiction  of  the 
estate. 

1375.  Clerk  first  acquiring  jurisdic- 
tion to  have  exclusive  jurisdic- 
tion. 

1376.  Letters  of  administration,  to 
whom  granted. 

1377.  Di.squalifications. 

1378.  Renunciation  of  persons  hav- 
ing prior  right. 

1379.  Persons  having  prior  right  dis- 
qualitied  or  absent. 

1380<  Wlien  person  entitled  to  ad- 
ministration deemed  to  have 
renounced. 


Section. 

1381.  Wliat  must  be  shown   on  ap- 
plication. 

1382.  Contested  administration. 

1383.  Letters  of  collection,  when  to 

issue  and  to  whom. 

1384.  Qualifications,  &c. 
1383.  Authorities,  &c. 

1.38(3.  Authority,  when  to  cease,  &c. 

1387.  Oailis.  &c.,  to  be  taken. 

1388.  Administrator,   &c.,    to    give 
bond;  proviso. 

1389.  Public  administrator,  how  ap' 
pointed. 

1390.  His  bond. 

1391.  When  bond  to  be  enlarged.  ■ 

1392.  Bond,  when  to  be  renewed. 


552 


EXECUTOES,  ETC. 


[Chap.  33. 


Section. 

1393.  Oath  of  public  administra- 
tor. 

1394.  When  public  administrator  to 
obtain  letters. 

1395.  Powers  and  duties;  proviso; 
penalty. 

1396.  Inventory  to  be  returned, 
when. 

1397.  Compelling  inventory 

1398.  New  assets. 

1399.  Annual  accounts. 

1400.  Fiiilure  to  account. 

1401.  Vouchers. 
1403.  Final  accounts. 

1403.  Trust  estate  in  personalty 
deemed  personal  assets. 

1404.  What  proceeds  of  sale  of  real 
property  deemed  personal 
assets. 

1405.  What  proceeds  deemed  real 
assets. 

1406.  Distinction  between  legal  and 
equitable  assets  al)olished. 

1407.  Crops,  when  ungalhercd  at 
decease,  deemed  personal 
assets. 

1408.  Power  of  executor  or  admin- 
istrator to  sell  personal  prop- 
erty. 

1409.  Same  as  to  collector. 

1410.  Sales,  how  to  be  made. 

1411.  To  sell  for  cash,  when. 
1413.  Sale  of  evidences  of  debt. 

1413.  Proceeds  of  sale,  how  secured. 

1414.  Hours  of  sale. 

1415.  Powers  under  wills. 

1416.  Order  of  payment. 

1417.  Rate  of  payment. 

1418.  No  preference  allowed. 

1419.  Debts  not  due. 

1 120.  Debts  due  executor,  &c. 

1431.  Advertising  for  claims;  notice 
for  six  weeks. 

1433.  If  no  paper  in  county,  adver- 
tisement to  be  made  at  court 
house,  <&c. 

1433.  How  advertisements  to  be 
proved. 


Section. 

1434.  Notice  may  be  served  person- 
ally. 

1425.  Affidavits  may  be  required. 

1426.  Referring  claim. 

1437.  Limitations  of  actions  on  dis- 
puted claims. 

1428.  Omission  to  present  claim 
within  twelve  months. 

1439.  Costs  against  executors,  &c., 
when  allowed. 

1430.  Undevised    real     estate    first 
I  chargeable  with  debts. 

1431.  Debtor  named  executor  not 
discharged. 

1433.  No  lien  created  by  commence- 
ment of  suit. 

1433.  To  what  estates  applicable; 
proviso. 

1434.  In  case  of  bona  fde  adminis- 
tration prior  to  July,  1809. 

1435.  Administrators  may  sell  cer- 
tain evidences  of  debt. 

1436.  Application  to  sell  real  prop- 
erty. 

1437.  Contents  of  petition. 

1438.  Heirs  and  devisees  to  be  par- 
ties. 

1439.  Infant  defendants. 

1440.  When  issues  joined. 

1441.  Issue  as  to  title. 

1443.  Conveyance  by  heir  or  devisee 
void  when. 

1443.  Power  of  clerk. 

1444.  Order  of  sale;  what  to  contain. 

1445.  Notice  of  sale. 

1446.  What  real  estate  subject  to 
sale. 

1447.  Judgment  in  case  of  fraudu- 
lent conveyance. 

1448.  Creditors  may  bring  a  special 
proceeding. 

1449.  By  what  rules  governed. 

1450.  Summ<ms,  when  and  where 
returnable. 

1451.  On  issuing  of  summons  clerk 
to  advertise. 

1453.  Where  published  and  for  what 
time. 


Chap.  33.] 


EXECUTORS,  ETC. 


553 


» 


Sectiok. 

145;!.  Creditors  to  name  an  agcMit  tn 
receive  notices,  &c. 

1454.  How  demands  filed  shall  be 
evidenced. 

1455.  Representative  to  file  list  of 
demands  made  on  liim. 

1456.  Clerk  to  exhibit  list  of  de- 
mands, &c.,  to  representative. 

1457.  Representative  to  admit  or 
deny  demands  -within  five 
days. 

1458.  What  clerk  to  do  when  issues 
joined. 

1459.  "Who  shall  pay  costs  of  issues. 

1460.  Failure  of  representative  to 
appear,  what  may  be  done. 

1461.  Clerk  to  proceed  to  state  ac- 
count. 

1462.  Clerk  to  prepare  and  sign  final 
report. 

1463.  Times  of  notice,  &c.,  may  be 
enlarged  by  clerk  or  judge. 

1464.  Of  appeals  to  superior  court, 
what  required. 

1465.  Clerk  to  file  papers  on  appeal. 

1466.  Creditors  in  prior  classes  may 
docket  their  judgments,  &c. 

1467.  If  assets  sufficient  to  pay  any 
class  of  debts. 

1468.  If  assets  insufficient  to  pay  all 
claims  in  any  class  of  debts. 

1469.  "What  judgments  to  declare. 

1470.  No  judgments  to  fix  assets  un- 
less, &c. 

1471.  Form  and  effect  of  execution. 
1473.  Report  evidence  of  assets   on 

day  only  to  which  it  relates. 

1473.  Affidavit  of  assets  afterwards 
come  to  hand,  proceedings  on. 

1474.  If  personal  assets  insufficient, 
may  proceed  against  land. 

1475.  Proceedings  on  return  of  sum- 
mons. 

1476.  Chapter  not  to  apply  to  pro- 
bates, &c.,  had  before  July, 
1869. 

1477.  Proceedings  on  probates,  &c., 
before  July  1st,  1869. 

24 


Section. 

1478.  Ini estates'  estates,  how  distri- 
buted. 

1479.  Husband  to  administer  on  the 
estate  of  a  wife  who  dies  in- 
testate. 

1480.  Right  of  administrator  lost 
upon  a  dissolution  of  the  mar- 
riage, &c. 

1481.  Elopement  and  adultery  of 
wife  forfeits  her  right  to  ad- 
minister on  husband's  estate. 
&C. 

1482.  Husband's  right  to  administer, 
&c.,  upou  wife's  estate,  when 
and  how  lost. 

1483.  Advancements  to  be  accounted 
for. 

1484.  Children  advanced  to  render 
schedule. 

1485.  Children  refusing  to  account 
not  entitled. 

1486.  Illegitimate  children  next  of 
kin  to  their  mothers,  wheu. 

1487.  Illegitimate  children  next  of 
kin  to  each  other. 

1488.  Executors,  &c.,  to  pay  over  at 
the  end  of  two  years. 

1489.  Sums  to  be  reserved. 

1490.  Rights  of  action  survive  to  and 
against  personal  representative. 

1491.  Exceptions;  rights  which  die 
with  the  person. 

1493.  Deeds  may  be  made  by  ex- 
ecutor, &c.,  in  certain  cases. 

1493.  Land  devised  to  be  sold  by  ex- 
ecutors, who  may  sell. 

1494.  Who  chargeable  as  executor 
de  son  iort. 

1495.  Devastavit  by  executors  or  ad- 
ministrators I  if  executors,  &c. 

1496.  Payments  of  executors,  &c., 
deemed  valid,  when. 

1497.  Right  of  action  to  survive  to 
executor  of  executor,  &c. 

1498.  Action  for  wrongful  act  or 
neglect  causing  death. 

1499.  Measure  of  damages. 

1500.  How  recovery  to  be  applied. 


EXECUTORS,  ETC. 


[Chap.  33. 


JTION. 

.501.  Recovery  of  assets  and  posses- 
sion of  real  property,  &c. 

1502.  Executors,  &c.,  to  hold  in  joint 
tenancy. 

1503.  Sales  of  real  property  under 
wills. 

1504.  When  property  paid  to  Univer- 
sity. 

1505.  Bidding  in  real  property. 

1506.  Promises,  to  cbarge  executor, 
&c.,  personally  to  be  in  writ- 
ing. 

1507.  All  actions  to  be  in  representa- 
tive capacity. 

1508.  Appearance  by  one  of  several 
executors,  &c. 

1509.  Actions  against  executors,  &c. , 
by  a  creditor. 

1510.  Legacies  and  distributive 
shares,  how  recoverable. 

1511.  Actions  against  executors,  ad- 
ministrators, &c. 

1513.  Judge  or  court  to  have  power 
to  adjudge  payment  of  legacies 
and  distributive  shares. 

1513.  Right  of  succeeding  executor. 
&c. ,  to  issue  execution. 

1514.  Actions  continued  in  case  of 
revocation  of  letters. 

1515.  When  executor  to  give  bond. 

1516.  Remedy  on  bond. 

1517.  Bond  to  be  prosecuted  on  re- 
vocation of  letters. 

1518.  Requiring  new  bonds  or  new 
sureties. 

1519.  Surety  in  danger  of  loss,  «&c., 
entitled  to  relief. 

1530.  Revocation  of  letters  for  failure 
to  comply. 

1521.  Appointment  of  successor;  in- 
terlocutory order. 

1533.  Administering  before  letters 
granted;  penalty. 

1533.  Service  on  absent  eiecutor,how 
made. 

1534.  Commissionsallowed  executor; 
proviso. 


Section. 

1535.  Executors,  &c.,  may  file  peti- 
tion for  settlement. 

1526.  Payment  of  legacy  or  distri- 
butive share  due  absentee  or 
minor. 

1537.  Liability  and  compensation  of 
clerk. 

1538.  Heirs,  &c.,  jointly  liable  for 
debts,  &c. 

1529.  Limit  of  liability. 

1530.  Apportionment  of  recovery; 
costs. 

1531.  Priority  of  debts. 

1533.  Defence;  other  debts  of  equal- 
ity or  priority. 

1533.  Debts  paid  estimated  as  if  un- 
paid, when. 

1534.  How  to  compel  contributions 
among  devisees  and  legatees. 

1535.  Specific  devisee,  when  entitled 
to  contribution, 

1536.  Of  what  lands  an  after-born 
child's  share  to  be  allotted. 

1537.  Of  what  personally  such  child's 
share  to  be  allotted. 

1538.  Intestate  estate  to  be  applied  in 
exoneration  of  estate  devised 
or  bequeathed. 

1589.  Decree  of  contribution. 

1540.  After-born  child  deemed  de- 
visee and  legatee,  when. 

1541.  How  executor  to  proceed  if  no 
petition  be  filed. 

1543.  Cases  of  sale  of  real  estate,  &c  ; 
final  orders,  not  made  before 
the  present  constitution,  may 
be  transferred  to  superior 
court. 

1543.  Executor  or  administrator  au- 
thorized after  twelve  months 
from  qualification  to  pay  into 
clerk's  office  moneys  belonging 
to  legatees  or  distributees  of 
estate. 

1544.  Clerk  to  receive  moneys  and 
give  receipt. 


Chap.  33.]  EXECUTORS,  ETC.  555 

Sec.  1374.  When  clerk  of  the  superior  court  has  juris- 
diction of  the  estate.    C.  C,  P.,  s.  433. 

The  clerk  of  the  superior  court  of  each  county  has  ju- 
risdiction, within  his  county,  to  take  proof  of  wills  and 
to  grant  letters  testamentary,  letters  of  administration 
with  the  will  annexed,  and  in  cases  of  intestacy,  in  the 
following  cases: 

(1)  Where  the  decedent  at,  or  immediately  previous  to, 
his  death  was  domiciled  in  the  county  of  such  clerk,  in 
whatever  place  such  death  may  have  happened; 

(2)  Where  the  decedent  at  his  death  had  his  fixed  place 
of  domicile  in  more  than  one  county  the  clerk  of  any 
such  county  has  jurisdiction; 

(3)  Where  the  decedent,  not  being  domiciled  in  this 
state,  died  out  of  the  state,  leaving  assets  in  the  county 
of  such  clerk,  or  assets  of  such  decedent  thereafter  come 
into  the  county  of  such  clerk; 

(4)  Where  the  decedent,  not  being  domiciled  in  this 
state,  died  in  the  county  of  such  clerk,  leaving  assets  in 
the  state,  or  assets  of  such  decedent  thereafter  come  into 
the  state. 

Leake  v.  Gilchrist,  2  Dev.,  73;  Smith  v.  Munroe,  1  Ircd.,  345;  Johnson 
V.  Corpening,  4  Ired.  Eq.,  216;  Suttle  v.  Turner,  8  Jon.,  403;  Wallis  v. 
Wallis,  1  Winst.,  78;  Ballard  v.  Kilpatrick,  71—281. 

Sec.  1375.  Clerk  first  acquiring  jurisdiction  to  have  ex- 
clusive jurisdiction.    C.  C.  P.,  s.  434. 

The  clerk  who  first  gains  and  exercises  jurisdiction 
under  this  chapter  thereby  acquires  sole  and  exclusive 
jurisdiction  over  the  decedent's  estate. 

Sec.  1376.  Letters  of  administration,  to  whom  granted. 
C.  C.  P.,  s.  456. 

Letters  of  administration,  in  case  of  intestacy,  shall  be 
granted  to  the  persons  entitled  thereto  and  applying  for 
the  same,  in  the  following  order: 

(1)  To  the  husband  or  widow,  except  as  hereinafter 
provided; 

(2)  To  the  next  of  kin  in  the  order  of  their  degree, 
where  they  are  of  different  degrees;  if  of  equal  degree, 
to  one  or  more  of  them,  at  the  discretion  of  the  clerk; 

(3)  To  the  most  competent  creditor  who  resides 
within  the  state,  and  proves  his  debt  on  oath  before 
the  clerk; 

(4)  To  any  other, person  legally  competent. 

Hughes  V.  Pipkin,  1  Phil.,  4;  Pearce  v.  Castrix,  8  Jon.,  71;  Armstrong 
V.  Stowe,  77—360. 


566  EXECUTORS,  ETC.  [Chap.  33. 

Sec.  1377.  Disqualifications.    C.  C.  P.,  s.  467. 

The  cleik  shall  not  issue  letters  of  administration  to 
any  person  who,  at  the  time  of  appearing  to  qualify,  is 

(1)  Under  the  age  of  twenty-one  years; 

(2)  An  alien,  who  is. a  non-resident  of  this  state; 

(3)  A  person  who  has  been  convicted  of  an  infamous 
crime; 

(4)  Who,  on  proof,  is  adjudged  by  the  clerk  incompe- 
tent to  execute  the  duties  of  such  trust,  by  reason  of 
drunkenness,  improvidence  or  want  of  understanding; 

(5)  Who  fails  to  take  the  oath  or  give  the  bond  required 
by  law. 

Wallis  V.  Wallis,  1  Winst.,  78. 

Sec.  1378.  Renunciation  of  persons  having  prior  right.  C. 
C.  P.,  s.  459. 

When  any  pereon  applies  for  administration,  and  any 
other  person  has  prior  right  thereto,  a  written  renuncia- 
tion of  the  person  or  persons,  having  such  prior  right, 
must  be  produced  and  tiled  with  the  clerk. 

Smith  V.  Munroe,  1  Ired.,  345;  Hill  v.  Alspaugli,  72 — 403. 

Sec.  1379.  Persons  having  prior  right,  disqualified  or  ab- 
sent.   C.  C.  P.,  s.  4GO. 

When  any  person  having  such  prior  i-ight  to  adminis- 
tration is  under  the  disqualification  of  age,  or  is  tempora- 
rily absent  from  the  state,  such  person  is  entitled  to  six 
months,  after  the  disability  of  age  is  removed  or  his  re- 
turn to  the  state,  in  which  to  renounce  his  right  or  apply 
for  letters  of  administration. 

Hill  V.  Alspaugh,  73—403. 

Sec.  1380.  "When  person  entitled  to  administration 
deemed  to  have  renounced.  C.  C.  P.,  s.  460  («).  1808- 
'9,  c.  203. 

If  any  person,  entitled  to  letters  of  administration,  fails 
or  refuses  to  apply  for  such  lette'-s  within  thirty  days 
after  the  death  of  the  intestate,  the  cleik.  on  application 
of  any  party  interested,  shall  issue  a  citation  to  such  jier- 
son  to  show  cause,  within  twentv  days  after  service  of 
the  citation,  why  he  should  not  be  deemed  to  have  re- 
nounced. If,  Avithin  the  time  named  in  the  citation,  he 
neglects  to  answer  or  to  show  cause,  he  shall  be  deemed 
to  have  renounced  his  right  to  administer,  and  the  cleik 
must  enter  an  order  accordingly,  and  proceed  to  grant 
letters  to  some  other  person. 

Hill  V.  Alspaugh,  73—403. 


k 


Chap.  33.]  EXECUTORS,  ETC.  557 

Sec.  1381.  "What  must  be  shown  on  application.    C.  C.  P., 
s.  461. 

On  application  for  letters  of  administration,  the  clerk 
must  ascertain  by  affidavit  of  the  applicant  or  otherwise: 

(1)  The  death  of  the  decedent  and  his  intestacy; 

(2)  That  the  applicant  is  the  proper  person  entitled_  to 
administration,  or  that  he  applies  after  the  renunciation 
of  the  person  or  persons  so  entitled; 

(3)  The  value  and  nature  of  the  intestate's  property, 
the  names  and  residence  of  ah  parties  entitled  as  heirs  or 
distributees  of  the  estate,  if  known,  or  that  the  same  can- 
not, on  diligent  inquiry,  be  procured;  which  of  said  par- 
ties are  minors,  and  whether  with  or  without  guardians, 
and  the  names  and  residence  of  such  guardians,  if  known. 

Such  affidavit  or  other  proof  must  be  recorded  and  filed 
by  the  clerk. 

Sec.  1382.  Contested  administration.    C.  C.  P.,  s.  462. 

Any  person  interested  in  the  estate  may,  on  complaint 
filed  and  notice  to  the  applicant,  contest  the  right  of  such 
apphcant  for  letters  of  administration,  and  on  any  issue 
of  fact  joined,  or  matter  of  law  arising  on  the  pleadings, 
the  cause  may  be  transferred  to  the  superior  court  for 
trial,  or  an  appeal  be  taken,  as  in  other  cases  provided  in 
this  chapter. 

Sec.  1383.  Letters  of  collection,  when  to   issue   and   to 
-whom.    0.  C.  P.,  s.  463. 

Whenever,  for  any  reason,  a  delay  is  necessarily  pro- 
duced in  the  admission  of  a  will  to  probate,  or  in  granting 
letters  testamentary,  letters  of  administiation,  or  letters 
of  administration  with  the  will  annexed,  the  clerk  may 
issue  to  some  discreet  person  or  persons,  at  his  option, 
letters  of  collection,  authorizing  the  collection  and  pres- 
ervation of  the  property  of  the  decedent. 

Lee  V.  Lee,  74—70;  Syme  v.  Broughton,  86—153. 

Sec.  1384.  Qualifications,  &c.    C.  C.  P.,  s.  464. 

Every  collector  shall  have  the  qualifications  and  give 
the  bond  prescribed  by  law  for  an  administrator. 

Sec.  1385.  Authority,  &c.    C.  C.  P.,  s.  465. 

Every  collector  has  authority  to  collect  the  personal 
property,  preserve  and  secure  the  same,  and  collect  the 
debts  and  credits  of  the  decedent;  and  for  these  purposes 
he  may  commence  and  maintain  or  defend  suits,  and  he 
may  sell,  under  the  direction  and  order  of  the  clerk,  any 


658  EXECUTORS,  ETC.  [Chap.  33. 

personal  property  for  the  preservation  and  benefit  of  the 
estate.     He  may  be  sued  for  debts  due  by  the  decedent; 
and  he  may  pay  funeral  expenses  and  other  debts. 
Lee  V.  Lee,  74—70;  Syme  v.  Broughton,  86—153. 

Sec.  1386.  Authority,  when  to  cease,  &c.    C.  C.  P.,  s.  466. 

When  letters  testamentary,  letters  of  administration 
or  letters  of  administration  with  the  will  annexed  are 
gi-anted,  the  powers  of  such  collector  shall  cease,  but 
any  suit  brought  by  the  collector  may  be  continued  by 
his  successor,  the  executor  or  the  administrator  in  his 
own  name.  Such  collector  must,  on  demand,  deliver  to 
the  executor  or  administrator  aU  the  property,  rights  and 
credits  of  the  decedent  under  his  control,  and  render  an 
accomit,  on  oath,  to  the  clerk  of  all  his  proceedings.  Such 
delivery  and  account  may  be  enforced  by  citation,  order 
or  attachment. 

Sec.  1387.  Oaths,  &c.,  to  he  taken.    C.  C.  P.,  s.  467. 

Before  letters  testamentary,  letters  of  administration 
with  the  will  annexed,  letters  of  administration  or  letters 
of  collection  are  issued  to  any  person,  he  must  take  and 
subscribe  an  oath  or  affirmation  before  the  clerk  that  he 
will  faithfully  and  honestly  discharge  the  duties  of  his 
trust,  which  oath  must  be  filed  in  the  office  of  the 
clerk. 

Armstrong  v.  Stowe,  77 — 360. 

Sec.  1388.  Administrators,  &c.,  to  give  hond ;  proviso. 
1870-'71,  c.  93.    C.  C.  P.,  s.  468. 

Every  executor  from  whom  a  bond  is  required  by  law, 
and  every  administrator  and  collector,  before  letters  are 
issued,  must  give  a  bond  payable  to  the  state,  with  two 
or  more  sufficient  sureties,  to  be  justified  before  and  ap- 
proved by  the  clerk,  conditioned  that  such  executoi',  ad- 
ministrator or  collector  shall  faithfully  execute  the  trust 
reposed  in  him  and  obey  all  lawful  orders  of  the  clerk  or 
other  court  touching  the  administration  of  the  estate 
committed  to  him.  The  penalty  of  such  bond  must  be 
at  least  double  the  value  of  all  the  personal  property  of 
the  deceased;  such  value  to  be  ascertained  by  the  clerk  by 
examination  on  oath  of  the  applicant  or  of  some  other 
competent  person:  Provided,  that  if  the  personal  property 
of  any  decedent  shall  be  insufficient  to  pay  his  debts  and 
the  charges  of  administration,  and  it  shall  become  neces- 
sary for  his  executor  or  administrator  to  apply  for  the 
sale  of  real  estate  for  assets,  and  the  bond  previously 


Chap.  33.]  EXECUTOES,  ETC.  559 

given  is  not  double  the  value  of  both  the  real  and  per- 
sonal estate  of  the  deceased,  such  executor  (if  bond  is  re- 
quired of  him  by  law)  or  administrator  shall,  before  or  at 
the  time  of  filing  his  petition  for  such  sale,  give  another 
bond  payable  and  conditioned  as  the  one  above  prescribed 
and  with  like  security,  in  double  the  value  of  the  real 
estate  for  the  sale  of  which  apphcation  shall  be  made. 

Sec.  1389.  Public  administrator,  how  appointed.  1868-'9, 
c.  113,  s.  1. 

There  may  be  a  pubhc  administrator  in  every  county, 
appointed  by  the  clerk  of  the  superior  court  for  the  term 
of  eight  years. 

Sec.  1390.  His  bond.     1868-'9,  c.  113,  s.  2. 

The  public  administrator  shall  enter  into  bond,  with 
three  or  more  sureties,  approved  by  the  clerk,  in  the  penal 
sum  of  eight  thousand  dollars,  payable  to  the  state  of 
North  Carohna,  conditioned  faithfully  to  perform  the 
duties  of  his  office,  and  obey  all  lawful  orders  of  the  clerk 
or  other  court  touching  the  administration  of  the  several 
estates  that  may  come  into  his  hands. 

In  re.  Brinson,  73—278. 

Sec.  1391.  When  bond  to  he  enlarged.    1868-'9,  c.  113, 
s.  3. 

Whenever  the  aggregate  value  of  the  real  and  personal 
property  belonging  to  the  several  estates  in  the  hands  of 
the  pubhc  administrator  shall  exceed  the  one-half  of  his 
bond,  the  clerk  shall  require  him  to  enlarge  his  bond  m 
amount  so  as  to  cover,  at  all  times,  at  least  the  double  of 
such  aggregate. 

Sec.  1392.  Bond,  when  to  be  renewed.    1868-'9,  c.  113, 
s.  4. 

The  public  administrator  shall  renew  his  bond  every 
two  years. 

In  re.  Brinson,  73—278. 

Sec.   1393.   Oath   of  public   administrator.    1868-'9,    c. 
113,  s.  5. 

The  public  administrator  shall  take  and  subscribe  an 
oath  (or  affirmation)  faithfully  and  honestly  to  discharge 
the  duties  of  his  trust;  and  the  oath  so  taken  and  sub- 
scribed must  be  filed  in  the  office  of  the  clerk  of  the  supe- 
rior court. 


560  EXECUTORS,  ETC.  [Chap.  33. 

Sec.  1394.  "When  public  administrator  to  obtain  letters. 
1868-'9,  c.  113,  s.  6. 

The  public  administrator  shall  apply  for  and  obtain  let- 
ters on  the  estates  of  deceased  persons  in  the  following 
cases: 

(D  When  the  period  of  six  months  has  elapsed  from 
the  death  of  any  decedent,  and  no  letters  testamentary, 
or  letters  of  administration  or  collection,  have  been  ap- 
plied for  and  issued  to  any  person ; 

(2)  When  any  stranger,  or  person  without  known 
heirs,  shall  die  intestate  in  any  county; 

(3)  When  any  person  entitled  to  administration  shall 
request,  in  writing,  the  clerk  to  issue  the  letters  to  the 
public  administrator. 

Sec.  1395.  Powers  and  duties;  proviso;  penalty.    1868-'9, 
c.  113,  s.  7.    1876-'7,  c.  239. 

The  public  administrator  shall  have,  in  respect  to  the 
several  estates  in  his  hands,  all  the  rights  and  powers, 
and  be  subject  to  all  the  duties  and  liabilities  of  other 
administrators.  On  the  expiration  of  the  term  of  office 
of  a  public  administrator  or  his  resignation,  he  may  con- 
tinue to  manage  the  several  estates  committed  to  him 
prior  thereto  until  he  shall  have  fully  administered  the 
same:  Provided,  that  this  section  shall  not  apply  to  such 
administrator  until  he  shall  enter  into  bond  payable  to 
the  state  of  North  Carolina  with  two  or  more  sufficient 
sureties  to  be  justified  before  and  approved  by  the  clerk 
or  other  authority  having  jurisdiction  thereof,  condi- 
tioned that  he  shall  faithfully  execute  the  trust  reposed 
in  him  and  obey  all  lawful  orders  of  the  clerk  or  other 
lawful  authority  touching  the  administration  of  the  sev- 
eral estates  so  committed  to  him.  The  penalty  of  such 
bond  shall  be  double  the  value  of  the  peisonal  property 
unadministered  of  the  said  several  estates,  and  also  of 
the  I'eal  estate  and  he  sliall  be  authorized  to  sue  for 
assets. 

Sec.  1396.  Inventory  to  be  returned,  when.    R.  C,  o.  46, 
s.  16.     1868-'9,  c.  113,  s.  8. 

Every  executor,  administrator  and  collector,  within 
three  months  after  his  quaUfication,  shall  return  to  the 
clerk,  on  oath,  a  just,  true  and  perfect  inventory  of  all 
the  real  estate,  goods  and  chattels  of  the  deceased,  which 
have  come  to  his  hands,  or  to  the  hands  of  any  person 
for  him,  wliich  inventory  shall  be  signed  by  him  and  be 
recorded  by  the  clerk. 


Chap.  33.]  EXECUTOES,  ETC.  561 

He  shall  also  return  to  the  clerk,  on  oath,  within  three 
months  afler  each  sale  made  by  him,  a  full  and  itemized 
account  thereof,  which  shall  be  signed  by  him  and  re- 
corded by  the  clerk. 

Ochiltree  v.  Wright;  1  D.  &  B.  Eq.,  338;  Graham  v.  Davidson,  3  D.  & 
B.  Eq.,  155;  Nichols  v.  Dunn,  2  D.  &B.  Eq.,  287;  Kerr  v.  Kirkpatrick,  8 
Ired.  Eq.,  137;  Cox  v.  Cox,  84—138. 

Sec.  1397.  Compelling  inventory.    1868-'9,  c.  113,  s.  9. 

If  the  inventory  and  account  of  sale  specified  in  the 
preceding  section  are  not  returned  as  therein  prescribed, 
the  clerk  must  issue  an  order  requiring  the  executor,  ad- 
ministrator or  collector  to  file  the  same  within  the  time 
specified  in  the  order,  which  shall  not  be  less  than  twenty 
days,  or  to  show  cause  why  an  attachment  should  not  be 
issued  against  him.  If,  after  due  service  of  the  order,  the 
executor,  administrator  or  collector  does  not,  on  the  re- 
turn day  of  the  order,  file  such  inventory  or  account  of 
sale,  or  obtain  further  time  to  file  the  same,  the  clerk 
shall  have  power  to  vacate  the  office  of  administrator, 
executor  or  collector,  and  such  executor,  administrator 
or  collector  shall  be  subject  to  prosecution  for  a  misde- 
meanor, and  fined  and  imprisoned  at  the  discretion  of  the 
court. 

Taylor  v.  Biddle,  71—1;  Pearce  v.  Lovinier,  71—248;  Armstrong  v. 
Stowe,  77—360;  Neighbors  v.  Hamlin,  78—43;  Barnes  v.  Browu,  79—401; 
McFadgen  v.  Council,  81—195. 

Sec.  1398.  New  assets.    1868-'9,  c.  113,  s.  10. 

Whenever  further  property  of  any  kind,  not  included 
in  any  previous  return,  shall  come  to  the  hands  or  knowl- 
edge of  any  executor,  administrator  or  collector,  he  must 
cause  the  same  to  be  returned,  as  hereinbefore  prescribed, 
within  three  months  after  the  possession  or  discovery 
thereof;  and  the  making  of  such  return  of  new  assets, 
from  time  to  time,  may  be  enforced  in  the  same  manner 
as  in  the  case  of  the  first  inventory. 

Sec.  1399.  Annual  accounts.      C.  C.  P.,  s.  478.     1871-'2, 
c.  46. 

Every  executor,  administrator  and  collector  shall,  with- 
in twelve  months  from  the  date  of  his  qualification  or 
appointment,  and  annually,  so  long  as  any  of  the  estate 
remains  in  his  control,  file,  in  the  office  of  the  clerk  of 
the  superior  court,  an  inventory  and  account,  under  oath, 
of  the  amount  of  property  received  by  him,  or  invested 
by  him,  and  the  manner  and  nature  of  such  investment, 


662  EXECUTOES,  ETC.  [Chap,  33. 

and  his  receipts  and  disbursements  for  the  past  year  in 
the' form  of  debit  and  ci-edit.  He  must  produce  vouchers 
for  all  payments.  The  clerk  may  examine  on  oath  such 
accounting  party,  or  any  other  person,  concerning  the 
receipts,  disbursements  or  any  other  matter  relating  to 
the  estate;  and,  having  carefully  revised  and  audited 
such  account,  if  he  approve  the  same,  he  must  indorse 
his  approval  thereon,  which  shall  be  deemed  prima  facie 
evidence  of  coi-rectness.  Each  clerk  must  annex  or  at- 
tach a  copy  of  this  section  to  all  letters  issued  by  him. 

Heilig  V.  Foard,  64—710;  McFadgen  v.  Council,  81—195;  Gregory  v. 
Ellis,  82—225. 

Sec.  1400.  Failure  to  account.    C.  C.  P.,  s.  479. 

If  any  executor,  administrator  or  collector  omits  to  ac- 
count, as  directed  in  the  preceding  section,  or  renders  an 
insufficient  and  unsatisfactory  account,  the  clerk  shall 
forthwith  order  such  executor,  administrator  or  collector 
to  render  a  full  and  satisfactory  account,  as  required  by 
law,  within  twenty  days  after  service  of  the  order.  Upon 
return  of  the  order,  duly  served,  if  such  executor,  ad- 
ministrator or  collector  fail  to  appear  or  refuse  to  exhibit 
such  account,  the  clerk  may  issue  an  attachment  against 
him  for  a  contempt  and  commit  him  till  he  exhibit  such 
account,  and  may  Ukewise  remove  him  from  office. 

Sec.  1401.  Vouchers.    C.  C.  P.,  s.  480. 

Vouchers  are  presumptive  evidence  of  disbursement, 
without  other  proof,  unless  impeached.  If  lost,  the  ac- 
counting party  must,  if  required,  make  oath  to  that  fact, 
setting  forth  the  manner  of  loss,  and  state  the  contents 
and  purport  of  the  voucher.  And  this  section  shall  apply 
to  guardians,  collectors,  trustees  and  to  all  other  peraons 
acting  in  a  fiduciary  character. 

Drake  v.  Drake,  82—443;  McNeill  v.  Hodges,  83—504;  Robertson  t. 
Wall,  85—283. 

Sec.  1402.  Final  accounts.    C.  C.  P.,  s.  481. 

An  executor,  or  administrator,  may  be  required  to  file 
his  final  account  for  settlement  in  the  office  of  the  clerk 
of  the  superior  court  by  a  citation  directed  to  him,  at  any 
time  after  two  years  from  his  qualification,  at  the  in- 
stance of  any  person  interested  in  the  estate;  but  such 
account  may  be  filed  voluntarily  at  any  time;  and, 
whether  the  accounting  be  voluntary  or  compulsory,  it 
shall  be  audited  and  recorded  by  the  clerk. 

Rowland  v.  Tlionipson.  G4— 714;  Rowland  v.  Thompson,  65 — 110; 
Hodges  V.  Council,  86—181;  Vaughan  v.  Hines,  87—445. 


Chap.  33.]  EXECUTORS,  ETC.  563 

Sec.  1403.  Trust  estate  in  personalty  deemed  personal 
assets.    1868-'9,  c.  113,  s.  11. 

If  any  trustee,  or  any  person  interested  in  any  trust 
estate,  shall  die  leaving  any  equitable  interest  in  personal 
estate  which  shall  come  to  his  executor,  administrator  or 
collector,  the  same  estate  shall  be  deemed  personal  assets. 

Martin  v.  Meredith,  71—214. 

Sec.  1404.  What  proceeds  of  sale  of  real  property  deemed 
personal  assets.    1868-'9,  c.  113.  s.  12. 

All  proceeds  arising  from  the  sale  of  real  property,  for 
the  payment  of  debts,  as  hereinafter  provided,  shall  be 
deemed  personal  assets  in  the  hands  of  the  executor,  ad- 
ministrator or  collector,  and  applied  as  though  the  same 
were  the  proceeds  of  personal  estate;  and  bonds  and 
other  obligations  in  which  the  ancestor  has  bound  his 
heirs  shall  not  be  put  in  suit  against  the  heirs  or  devisees 
of  the  deceased,  but  shall  be  paid  as  other  debts  of  the 
same  class  in  the  manner  provided  in  this  chapter. 

Sec.  1405.  What  proceeds  deemed  real  assets.    1868-'9, 
c.  113,  s.  13. 

All  proceeds  from  the  sale  of  real  estate,  as  hereinafter 
provided,  which  may  not  be  necessary  to  pay  debts  and 
chaxges  of  administration,  shall,  notwithstanding,  be 
considered  real  assets,  and  as  such  shall  be  paid  by  the 
executor,  administrator  or  collector,  to  such  persons  as 
would  have  been  entitled  to  the  land  had  it  not  been  sold. 

Smith  V.  Forteacue,  Busb.  Eq.,  137;  Latta  v.  Russ,  8  Jon.,  Ill;  Allison 
V.  Robinson,  78—233. 

Sec.  1406.  The  distinction  between  legal  and  equitable 
assets  abolished.    1868-'9,  c.  113,  s.  14. 

The  distinction  between  legal  and  equitable  assets  is 
abolished,  and  all  assets  shall  be  apphedinthe  discharge 
of  debts  in  the  manner  prescribed  by  this  chapter. 

Sec.  1407.  Crops  ungathered  at  decease  deemed  personal 
assets.    1868-'9,  c.  113,  s.  15. 

The  crops  of  every  deceased  person,  remaining  un- 
gathered at  his  death,  shall,  in  all  cases,  belong  to  the 
executor,  administrator  or  collector,  as  part  of  the  per- 
sonal assets,  and  shall  not  pass  to  the  widow  with  the 
land  assigned  as  dower,  nor  to  the  devisee  by  virtue  of 
any  devise  of  the  land,  unless  such  intent  be  manifest 
and  specified  in  the  will. 

Flint  V.  Conrad,  Phil,  190;  Thomas  v.  Lines,  83—191. 


y64  EXECUTORS,  ETC.  [Chap.  33. 

Sec.  1408.  Powerof  executor  or  administrator  to  sell per- 
soual  property.     1868-'9,  c.  113,  s.  16. 

Every  executor  and  administiator  shall  have  power  in 
his  discretion  and  without  any  order,  except  as  hereinafter 
provided,  to  sell,  as  soon  after  his  qualification  as  prac- 
ticable, all  the  personal  estate  of  his  decedent. 

Sec.  1409.  Same  as  to  collector.    1868-'9,  c.  113,  s.  17. 

All  sales  of  personal  property  by  collectors  shall  be 
made  only  upon  order  obtained,  by  motion,  from  the 
clerk  of  the  superior  court,  who  shall  specify  in  his  order 
a  descriptive  list  of  the  property  to  be  sold. 

Sec.  1410.  Sales,  liow  to  be  made.    1868-'9,  c.  113,  s.  18. 

All  sales  of  personal  estate  by  an  executor,  adminis- 
trator or  collector,  shall  be  publicly  made,  on  a  credit  of 
six  months  or  for  cash,  after  twenty  days'  notification 
posted  at  the  court  house  and  four  other  public  places  in 
the  county. 

Wortli  V.  McAden,  1  D.  &  B.  Eq.,  199;  Wynns  v.  Alexander,  2  D.  &  B. 
Eq.,  58;  McKay  v.  Flower,  Busb.,  213;  Polk  v.  Robinson,  7  Ired.  Eq.,  235. 

Sec.  1411.  To  sell  for  cash,  when.    1868-'9,  c.  113,  s.  19. 

To  sell  for  cash,  executors,  administrators  and  collect- 
ors must  obtain  an  order  fi'oni  the  clerk,  for  reasons  to 
be  filed  in  the  office  of  the  court.  When  any  person  in- 
terested either  as  creditor  or  legatee  on  the  day  of  sale, 
objects  to  the  completion  of  such  cash  sale,  on  account  of 
the  insufficiency  of  the  amonnt  bid,  before  passing  title 
to  property  so  disposed  of,  the  clerk,  at  his  discretion, 
shall  confirm  the  sale. 

Sec.  1412.  Sale  of  evidences  of  debt.    1868-'9,  c.  113,  s. 
20. 

Every  executor,  administrator  and  collector,  at  any 
time  after  one  year  from  the  grant  of  letters,  shall  be 
authorized  to  sell  at  public  auction,  in  the  manner  pre- 
scribed in  this  chapter,  all  bills,  bonds,  notes,  accounts, 
or  other  evidences  of  debt  belonging  to  the  decedent, 
which  he  has  been  unable  to  collect  or  which  may  be 
deemed  insolvent.  Before  offering  such  evidences  of 
debt  at  public  sale  he  shaU  file  with  the  clerk  a  descriptive 
list  thereof,  and  obtain  an  order  of  sale  therefor  from  the 
clerk,  and  shall  make  return  of  the  proceeds  of  such  sale 
as  in  other  cases  of  assets. 
Gray  v.  Armistead,  6  Ired.  Eq. ,  74,  and  cases  there  cited. 


Chap.  33.]  EXECUTOKS,  ETC.  565 

Sec.  1413.  Proceeds   of  sale,   how    secured.     1868-'9,  c. 
113,  s.  21. 

The  proceeds  of  all  sales  of  personal  estate  and  rentings 
of  real  property  by  public  auction,  shall  be  secured  by 
bond  and  good  personal  security;  and  such  proceeds  shall 
be  collected  as  soon  as  practicable,  otherwise  the  executor, 
administrator  or  collector  shall  be  answerable  for  the 
same. 

Lee  V.  Lee,  74—70. 

Sec.  1414.  Hours  of  sale.     1868-'9,  c.  113,  s.  22. 

All  sales  or  rentings  provided  for  in  the  preceding 
section,  shall  be  between  the  hours  of  ten  o'clock,  a.  m., 
and  four  o'clock  p.  m.,  of  the  day  on  which  the  sale  or 
renting  is  to  be  made;  and  every  executor,  administrator 
or  collector,  who  otherwise  makes  any  sale  or  renting, 
shall  forfeit  and  pay  two  hundi-ed  dollars  to  any  person 
suing  for  the  same. 

McDaniel  v.  Johns,  8  Jon.,  414. 

Sec.  1415.  Powers  under  wlUs.    1868-'9,  c.  113,  s.  23. 

Nothing  in  this  chapter  shall  be  construed  to  affect  the 
discretionary  powers,  trusts  and  authorities  of  an  execu- 
tor or  other  trustee  acting  under  a  will:  Provided, 
creditors  be  not  delayed  thereby,  nor  the  order  changed 
in  which  by  law  they  are  entitled  to  be  paid. 

Murcbinson  v.  Williams,  71 — 135. 

Sec.  1416.  Order  of  payment.  1868-'9,  c.  113,  s.  24. 

The  debts  of  the  decedent  must  be  paid  in  the  following 
order: 

First  Class. — Debts  which  by  law  have  a  specific  lien 
on  property  to  an  amount  not  exceeding  the  value  of  such 
property. 

Second  Class. — Funeral  expenses. 

Ward  V.  Jones,  Busb.,  137;  Barbee  v.  Green,  86—158. 

Third  Class. — Taxes  assessed  on  the  estate  of  the 
deceased  previous  to  his  death. 

Fourth  Class.— Dues  to  the  United  States  and  to  the 
state  of  North  Carolina. 

Fifth  Class. — Judgments  of  any  court  of  competent 
jurisdiction  within  this  state,  docketed  and  in  force,  to 
the  extent  to  which  they  are  a  lien  on  the  property  of 
the  deceased  at  his  death. 

Galloway  v.  Bradfield,  86—163;  Mauney  v.  Holmes,  87 — 428;  Daniel  v. 
Laughlin,  87—433. 


566  EXECUTOES,  ETC.  [Chap.  33. 

Sixth  Class.— Wages  due  to  any  domestic  servant  or 
mechanical  or  agricultural  laborer  employed  by  the  de- 
ceased/which  claim  for  wages  shall  not  extend  to  a 
period  of  more  than  one  year  next  preceding  the  death; 
or  if  such  servant  or  laborer  was  employed  for  the  year 
current  at  the  decease,  then  from  the  time  of  such  em- 
ployment; for  medical  services  within  the  twelve  months 
preceding  the  decease. 

Seventh  Class.— All  other  debts  and  demands. 

Jerkins  v.  Carter,  70—500;  Murchisou  v.  Williams,  71—135;  Lee  v. 
Eure,  82— 428;  Galloway  v.  Bradfield,  86—163;  Mauney  v.  Holmes,  87— 
428;  Daniel  v.  Laughlin,  87—433. 

Sec.  1417.    Rate  of  payment.    1868-'9,  c.  113,  s.  25. 

Every  debt  must  be  paid  pro  rata,  equally  in  its  class. 

Sec.  1418.    No  preference  allowed.     1868-'9,  c.   113,  s. 
26. 

No  executor,  administrator  or  collectoi-  shall  give  to 
any  debt  any  preference  whatever,  either  by  paying  it 
out  of  its  class  or  by  paying  thereon  an  undue  propor- 
tion in  its  class. 

Sec.  1419.    Debts  not  due.    1868-'9,  c.  113,  s.  27. 

Debts  not  due  may  be  paid  on  a  rebate  of  interest 
thereon  for  the  time  unexpired. 

Sec.  1420.  Debts  due  executor,  &c.    1868-'9,  c.   113,  s. 

28. 

No  property  or  assets  of  the  decedent  shall  be  retained 
by  the  executor,  administrator  or  collector  in  satisfaction 
of  his  own  debt,  in  preference  to  others  of  the  same 
class;  but  such  debt  must  be  estabhshed  upon  the  same 
proof  and  paid  in  like  manner  and  order  as  required  by 
law  in  case  of  other  debts. 

Sec.  1421.  Advertising  for  claims;   notice  for  six  weeks. 
1868-'9,  c.  113,  s.  29.    1881,  c.  278,  s.  2. 

Every  executor,  administrator  and  collector,  within 
twenty  days  after  the  granting  of  letters,  shall  notify  all 
persons  having  claims  against  the  decedent,  to  exhibit 
the  same  to  such  executor,  administrator  or  collector,  at 
or  before  a  day  to  be  named  in  such  notice;  which  day 
must  be  twelve  months  from  the  day  of  the  first  publica- 
tion of  such  notice.  The  notice  shall  be  pubhshed  once 
a  week,  for  six  weeks, in  a  newspaper  (if  any  there  be) 


Chap.  33.]  EXECUTOES,  ETC.  567 

published  in  the  county:    Provided,  that  the  cost  thereof 
shall  in  no  case  exceed  two  dollars  and  fifty  cents. 

Lee  V.  Patrick,  9  Ircd.,  135;  Gilliam  v.  Willey,  IJon,  Eq.,  128;  Flem- 
ming  V.  Flemming,  85 — 127. 

Sec.  1422.  If  no   paper  in  county,  advertisement  to  be 
made  at  court  house,  &c. 

If  there  shall  be  no  newspaper  published  in  the  county, 
then  the  notice  required  in  the  preceding  section  shall 
be  posted  at  the  court  house,  and  four  other  pubhc  places 
in  the  county. 

Sec.  14:23.  How  advertisements  to  be  proved.    1868-'9, 
c.  113,  s.  31. 

A  copy  of  the  advertisement,  directed  to  be  posted  or 
published  in  pursuance  of  the  preceding  sections  with  an 
affidavit,  taken  before  some  person  authorized  to  admin- 
ister oaths,  of  the  proprietor,  editor  or  foreman  of  the 
newspaper  wherein  the  same  appeared,  to  the  effect  that 
such  notice  was  published  for  sir  weeks  in  said  news- 
paper, or  an  affidavit,  stating  that  such  notices  posted, 
were  filed  in  the  office  of  the  clerk  by  the  executor,  ad- 
ministrator or  coUector.  The  copy  so  verified  or  affidavit 
shall  be  deemed  a  record  of  the  court  and  a  copy  thereof, 
duly  certified  bv  the  clerk,  shall  be  received  as  conclusive 
evidence  of  the"  fact  of  pubhcation  in  all  the  courts  of  this 
state. 

Flemming  v.  Flemming,  85 — 127.' 

Sec.  1424.  Notice  may  be  served  personally.    1868-'9,  c. 
113,8.32. 

The  executor,  administrator  or  collector  may  caus'j  the 
said  notice  to  be  personally  served  on  any  creditor;  who 
shall,  thereupon,  within  six  months  after  personal  service 
thereof,  exhibit  his  claim,  or  be  forever  barred  from 
maintaining  any  action  thereon. 

Flemming  v.  Flemming,  85 — 127. 

Sec.  1425.  Affidavits  may  be  required.     1868-'9,  c.  113, 
s.  33. 

Upon  any  claim  being  presented  against  the  estate, 
the  executor,  administrator  or  collector  may  require  the 
affidavit  of  the  claimant  or  other  satisfactory  evidence 
that  such  claim  is  justly  due,  that  no  payments  have 
loeen  made  thereon,  and  that  there  are  no  off- sets  against 
the  same,  to  the  knowledge  of  the  claimant;  or  if  any  pay- 


568  EXECUTOES.  ETC.  [Chap.  33. 

ments  have  been  made,  or  anyoflf-sets,  exist,  their  nature 
and  amount  must  be  stated  in  such  affidavit. 

Flemming  v.  Flemming,  85—127. 

Sec.   1426.    Referring   claim.      1868-'9,  c,    113     s    34 
1872-'3,  c.  141. 

If  the  executor,  administrator  or  collector  doubt  the 
justness  of  any  claim  so  presented,  he  may  enter  into  an 
agreement,  m  writing,  with  the  claimant,  to  refer  the 
matter  m  controversy,  whether  the  same  be  of  a  legal  or 
equitable  nature,  to  one  or  more  disinterested  persons 
not  exceeding  three;  whose  proceedings  shall  be  the  same 
in  all  respects  as  if  such  reference  had  been  ordered  in  an 
action.  Such  agreement  to  refer,  and  the  award  there' 
upon,  shaU  be  filed  in  the  clerk's  office  where  the  letters 
were  granted,  and  shall  be  a  lawful  voucher  for  the  per- 
sonal representative:  the  same  may  be  impeached  in  any 
proceeding  against  the  peisonal  representative,  for  fraud 
therein:  Provided,  that  the  right  to  refer  claims  under 
this  section  shall  extend  to  claims  in  favor  of  the  estate  as 
well  as  those  against  it. 

Graham  v.  Tate,  77—130;  Flemming  v.  Flemming,  85—127-  Kay  v 
Palton,  86—386.  '  ' 

Sec.   1427.   Limitations    of  action  on    disputed    claims 
1868-'9,  c.  113,  s.  35. 

If  a  claim  is  presented  to  and  rejected  by  the  executor 
administrator  or  coUectoi',  and  not  referred  as  provided 
in  the  preceding  section,  the  claimant  must,  within  six 
months  after  due  notice  of  such  rejection,  or  after  some 
part  of  the  debt  becomes  due,  commence  an  action  for 
the  recovery  thereof,  or  be  forever  barred  from  maintain- 
ing an  action  thereon. 

Graham  v.  Tate,  77—120;  Flemming  v.  Flemming,  85— 127.- 

Sec.  1428.    Omission    to    present   claim   within   twelve 
months,    1868-'9,  c.  113,  s.  37. 

In  an  action  brought  on  a  claim  which  was  not  pre- 
sented within  twelve  months  from  the  first  pubhcationof 
the  general  notice  to  creditors,  the  executor,  administrator 
or  collector  shall  not  be  chargeable  for  any  assets  that 
he  may  have  paid  in  satisfaction  of  any  debts,  legacies 
or  distributive  shares,  before  such  action  was  commenced; 
nor  shall  any  costs  be  recovered  in  such  action  against 
the  executor,  administrator  or  collector. 


Chap.  33.]  EXECUTORS,  ETC.  569 

Sec.  1429.  Costs  against  executors.  &c.,  wlien   allowed. 
1868-'9,  c.  113,  s.  38. 

No  costs  shall  be  recovered  in  any  action  against  an 
executor,  administrator  or  collector,  unless  it  appears 
that  payment  was  unreasonably  delayed  or  neglected,  or 
that  the  defendant  refused  to  refer  the  matter  in  contro- 
versy, in  which  cases  the  court  may  award  such  costs 
against  the  defendant  personally,  or  against  the  estate, 
as  may  be  just. 

Mayv.  Darden,  83—237;  Flemming  v.  Flemming,  85—127. 

Sec.   1430.  Undevised  real  estate   first  cliargeaWe  with 
debts.    1868-'9,c.  113,  s,  39. 

When  any  part  of  the  real  estate  of  the  testator  de- 
scends to  his  heirs  by  reason  of  its  not  being  devised  or 
disposed  of  by  the  will,  such  undevised  real  estate  shall 
be  first  chargeable  with  payment  of  debts,  in  exonera- 
tion, as  far  as  it  will  go,  of  the  real  estate  that  is  devised, 
unless  from  the  will  it  appears  otherwise  to  be  the  wish 
of  the  testator. 

Sec.    1431.    Debtor    named    executor,    not    discharged. 
1868-'9,  c.  113,  s.  40. 

The  appointing  of  any  person  executor  shall  not  be  a 
discharge  of  any  debt  or  demand  due  from  such  pei'son 
to  the  testator. 

Ferebee  v.  Doxey,  6  Ired.,  448;  Moore  v.  Miller,  Phil.  Eq.,  359. 

Sec.  1432.  STo   lien   created  by   commencement  of  suit. 
1868-'9,c.  113,  s.  41. 

No  lien  shall  be  created  by  the  commencement  of  a 
suit  against  an  executor,  administrator  or  collector. 

Sec.  1433.  To  what  estates  applicable;  proviso.  1869-'70, 
c.  58,  s.  1. 

This  chapter  shall  applj^  to  the  estates  of  such  deceased 
persons  only  whereof  original  administration  has  been 
granted  subsequent  to  the  first  day  of  July,  one  thousand 
eight  hundred  and  sixty-nine,  and  all  estates  whereon 
administration  was  granted  prior  to  the  said  fir-st  day  of 
July,  one  thousand  eight  hundred  and  sixty-nine,  shall 
be  dealt  with,  administered  and  settled  accordirig  to  the 
law  as  it  existed  just  prior  to  the  said  date,  and  it  is  here- 
by declared  that  such  is  the  true  intent  and  meaning  of 
this  chapter:  Provided,  that  nothing  herein  shall  be  con- 
strued to  prevent  the  application  of  this  chapter  so  far 
as  it  relates  only  to  the  courts  having  jurisdiction  of  any 


570  EXECUTOES,  ETC.  [Chap.  33. 

action  or  proceeding  for  the  settlement  of  an  administra- 
tion or  to  the  practice  and  procedure  therein. 

Biidham  V.  Cox,  11  Ired.,  456;  Giles  v.  Palmer,  4  Jon.,  386;  Moore  v. 
Byers,  65—240;  Taylor  v.  Biddle,  71—1;  Brandon  v.  Phelps,  77—44;  John- 
son V.  Futrell,  86—123;  Ray  v.  Patton.  86—386;  Murchison  v.  w'hitted 
87—465. 

Sec.  1434.  In  case  of  bona  fide  administration  prior  to 
July,  1869.     1869-'70,  c.  58,  s.  2. 

If  any  person  shall  have  bona  fide  administered  any 
estate  or  any  part  of  the  estate  of  any  deceased  person 
whereof  original  administration  was  gi-anted  prior  to  said 
first  day  of  July,  under  the  said  act  of  one  thousand 
eight  hundred  and  sixty-eight  and  one  thousand  eight 
himdred  and  sixty-nine,  he  shall  not  be  deemed  guilty 
of  a  devastavit. 


Sec.  1435.  Administrators  may  sell  certain  evidences  of 
debt.    1869-'70,  c.  58,  s.  3. 

Executors  and  administrators  who  qualified  and  entered 
upon  the  administration  of  their  estates  before  the  first 
day  of  July,  one  thousand  eight  hundred  and  sixty-nine, 
may  sell  such  evidences  of  debt  as  are  mentioned  and 
provided  in  this  chapter. 

Sec.  1436.  Application  to  sell  real  property.    1868-'69, 
c.  113,  s.  42. 

When  the  personal  estate  of  a  decedent  is  insufficient 
to  pay  all  his  debts,  including  the  charges  of  administra- 
tion, the  executor,  administrator  or  collector  may,  at 
any  time  after  the  grant  of  letters,  apply  to  the  superior 
court  of  the  county  where  the  land  or  some  part  thereof 
is  situated  by  petition  to  sell  the  real  property  for  the 
payment  of  the  debts  of  such  decedent. 

Rhem  v.  Tull,  13  Ircd.,  57;  Knight  v.  Knight,  6  Jon.  Eq.,  134;  Thomp. 
son  V.  Co.x,  8  Jon.,  311;  Wiley  v.  Wiley,  Phil.,  131;  Evans  v.  Singletary, 
63—205;  Wadsworlh  v.  Davis,  63— 251;  Finger  v.  Finger,  64—183;  Pike  v. 
Green,  64^665;  Hardee  v.  Williams,  65—56;  Hyman  v.  Jainigan,  65—96; 
Vaughn  v.  Deloatch,  65—378;  Bland  v.  Harstoe,  65—204;  Pelletier  v. 
Saunders,  67—261;  Hintou  v.  Whitehurst,  68—316;  Latham  v.  Bell.  69— 
135;  Humphrey  v.  Wade,  70—280;  Cailton  v.  Byers,  70—691;  Ballard  v. 
Kilpatrick,  71—281:  Stafford  v.  Harris,  72—198;  Haywood  v.  Haywood, 
79—42;  Alison  v.  Robinson,  78—222;  Shields  v.  McDowell,  82—137;  Peter- 
son v.  Vann,  83—118;  Williams  v.  Williams,  85—313;  Johnson  v.  Futrell 
86—122. 


Chap.  33.]  EXECUTOES,  ETC.  571 

Sec.  1437.  Contents  of  the   petition.     1868-'9,  c.   113, 
s.  43. 

The  petition,  which  must  be  verified  by  the  oath  of  the 
applicant,  shall  set  forth,  as  far  as  can  be  ascertained— 

(1)  The  amount  of  debts  outstanding  against  the 
estate; 

(2)  The  value  of  the  personal  estate,  and  the  applica- 
tion thereof; 

(3)  A  description  of  all  the  legal  and  equitable  real 
estate  of  the  decedent,  with  the  estimated  value  of  the 
respective  portions  or  lots; 

(4)  The  names,  ages  and  residences,  if  known,  of  the 
devisees  and  heirs  at  law  of  the  decedent. 

Thompson  v  Cox,  8  Jon.  ,  311;  Hinton  v.  Whitehurst,  68-316;  Hay- 
wood V.  Haywood,  79-42;  Shields  v.  McDowell.  83-137;  Stradley  v. 
King,  84—635. 

Sec.  1438.  Heirs  and  devisees  to  be  parties.  1868-'9,  c. 
113  s.  44. 
No  order  to  sell  real  estate  shall  be  granted  till  the 
heirs  or  devisees  of  the  decedent  have  been  made  parties 
to  the  proceeding,  by  service  of  summons,  either  person- 
ally or  by  publication,  as  prescribed  in  the  chapter  enti- 
tled Code  of  Civil  Procedure. 

Thompson  v.  Cox,  8  Jon.,  311;  Williams  v.  Williams,  85—313. 

Sec.  1439.  Infant  defendants.    1868-'9,  c.  113,  s.  45. 

Infant  defendants  must  appear  by  guardian,  either 
general  or  special,  who  shall  file  an  answer  to  the  peti- 
tion, either  admitting  or  denying  the  allegations  thereof, 
and  where  such  answer  is  filed  by  a  guardian  ad  litem, 
the  costs  and  expenses  thereof,  if  any,  may  be  directed 
to  be  paid,  if  the  court  thinks  proper,  out  of  the  proceeds 
of  the  sale,  in  case  one  is  ordered. 

Stradley  v.  King,  84—635. 

Sec.  1440.  When  issue  joined.    1868-'9,  c.  113,  s.  46. 

When  an  issue  of  law  or  fact  is  joined  between  the 
parties,  the  course  of  the  procedure  shall  be  as  prescribed 
in  sach  cases  for  other  special  proceedings. 

McBiydev.  Patterson,  73—478;  Jones  v.  Hemphill,  77—42. 

Sec.  1441.  Issue  as  to  title.    1868-'9,  c.  113,  s.  47. 

Whenever  the  land,  which  is  sought  to  be  sold,  is 
claimed  by  another  person  under  any  pretence  whatso- 
ever, such  claimant  shall  be  admitted  to  be  heard  as  a 
party  to  the  proceeding,  upon  afiidavit  of  his  claim,  and 


572  EXECUTORS,  ETC.  [Chap.  33. 

if  the  issue  be  found  for  the  petitioner  he  shall  have  bis 
writ  of  possession  and  oi-der  of  sale  accordingly. 

Sec.   1442.   Conveyance  by  heir  or  devisee  void,  when. 
1868-'9,  c.  113,  s.  105. 

All  conveyances  of  real  property  of  any  decedent  made 
by  any  devisee  or  heir  at  law,  within  two  years  from  the 
grant  uf  letters,  shall  be  void  as  to  the  creditors,  execu- 
tors, administrators  and  collectors  of  such  decedent;  but 
such  conveyances  to  6o?; a  fide  purchasers  for  value  and 
without  notice,  if  made  after  two  years  from  the  grant 
of  letters,  shall  be  valid  even  as  against  creditors. 

Thompson  V.  Cox,  8  Joa.,  311;  Badger  v.  Jones,  66—^05;  Donoho  7. 
Patterson,  70—649;  Hiuton  v.  Wliiteburst,  71—66;  Brandon  v.  Phelps, 
77—44;  Badger  v.  Daniel,  79—373;  Wiufleid  v.  Burton,  79—388;  Renan  v 
Banks,  83—483;  Murchison  v.  Whitted,  87—465. 

Sec.  1443.  Power  of  clerk.    1868-'9,  c.  113,  s.  48. 

As  soon  as  all  proper  parties  are  made  to  the  proceed- 
ing, the  clerk  of  the  superior  court  before  whom  it  is  in- 
stituted, if  the  allegations  in  the  petition  are  not  denied 
or  controverted,  shall  have  power  to  hear  the  same  sum- 
marily, and  to  decree  a  sale. 

Thompson  V,  Cox,  8  Jon.,  311. 

Sec.   1444.  Order  of  sale,  what  to  contain.    1868-'9,  c. 
113,  s.  49. 

The  court  may  decree  a  sale  of  the  whole  or  any  speci- 
fied parcel  of  the  premises,  in  such  a  manner  as  to  size  of 
lots,  place  of  sale,  terms  of  credit,  and  security  for  pay- 
ment of  purchase  money,  as  may  be  most  advantageous 
to  the  estate,  and  upon  the  coming  in  of  the  report  of  the 
sale  and  the  confirmation  thereof,  title  shall  be  made  by 
such  person,  and  at  such  time  as  the  court  may  pre- 
scribe, and  in  all  cases  where  the  persons  in  possession 
have  been  made  parties  to  the  proceeding,  the  court  may 
giant  an  order  for  possession. 

Thompson  v.  Cox,  8  Jon.,  311;  Floyd  v.  Herring,  64^409;  Hyman  v. 
Jernigan.  65 — 96;  Shearin  v.  Hunter,  72 — 493;  McLean  v.  Patterson,  84 — 
427;  Fouchce  v.  Durham,  84—56. 

Sec.   1445.  Notice  of  sale.    1868-'9,  c.  113,  s.50. 

Notice  of  sale  under  this  proceeding  shall  be  the  same 
as  for  the  sale  of  real  estate  by  sheriffs  on  execution. 

Sec.  1446.  What  real  estate  subject  to  sale.    1868-'9,  c. 
113,  s.  51. 

The  real  estate  subject  to  sale  under  this  chapter  shall 


Chap.  33.]  EXECUTORS,  ETC.  573 

include  all  the  deceased  may  have  conveyed  with  intent 
to  defraud  his  creditors,  and  all  rights  of  entry  and  rights 
of  action  and  all  other  rights  and  interests  in  lands,  tene- 
ments and  hereditaments  which  he  may  devise,  or  hy 
law  would  descend  to  his  heirs:  Provided,  that  lands  so 
fraudulently  conveyed  shall  not  be  taken  from  any  one 
who  purchased  them  for  a  valuable  consideration  and 
without  a  knowledge  of  the  fraud. 

Waugh  V.  Blevins,  68—167;  Paschal  v.  Harris,  74—335;  Mannix  v.  Ihrie, 
76—299;  Heck  v.  Williams,  79—437. 

Sec.  1447.  Judgment  in  case  of  fraudulent  conveyance. 
1868-'9,  c.  113,  S.52. 

Whenever  an  executor,  administrator  or  collector  shall 
file  his  petition  to  sell  laud,  which  may  have  been  fraud- 
ulently conveyed,  and  of  which  there  may  have  been  a 
subsequent  bona  fide  sale,  whereby  he  cannot  have  a  de- 
cree of  sale  of  the  land,  the  court  may  give  judgment  in 
favor  of  such  executor,  administrator  or  collector  for  the 
value  of  the  land,  against  all  persons  who  may  have 
fraudulently  purchased  the  same;  and  if  the  whole  re- 
covery shall  not  be  necessary  to  pay  the  debts  and  charges, 
the  residue  shall  be  restored  to  the  person  of  whom  the 
recovery  was  made 

Sec.   1448.    Creditors  may    bring   a   special   proceeding. 
1871-'2,  c.  213,  s.  1.    1876-'7,  c.  241,  s.  6. 

Any  creditor  of  a  deceased  person  may,  within  the 
times  prescribed  by  law,  prosecute  a  special  proceeding 
or  a  civil  action  before  the  judge  in  his  own  name  and  in 
behalf  of  himself  and  all  other  creditors  of  the  deceased 
without  naming  them,  against  the  personal  representa- 
tive of  the  deceased,  to  compel  him  to  an  account  of  his 
administration,  and  to  pay  the  creditors  what  may  be 
payable  to  them  respectively. 

Wadsworth  V.  Davis,  63—251;  Ransom  v.  McCIees,  64—17;  Herring  v. 
Outlaw,  70—334;  Jerkins  v.  Carter,  70—500;  Overman  v.  Gri(»i-,  70—693; 
Ballard  V.  Kilpatrick,  71-281;  Patterson  v.  Miller,  73—516;  Wadswnrtb 
V.  Davis,  75—159;  Isler  v.  Murphy,  76—52;  Graham  v.  Tate,  77—120; 
Haywood  V.  Haywood,  79—43;  Bratton  v.  Davidson,  79—423;  Shields  v 
Payne,  80-291;  Southall  v.  Shields,  81— 28;  McFadgen  v.  Council,  81— 
195;  Pegram  v.  Armstrong,  83—326;  Gates  v.  Lilly,  84—643;  Bacon  v. 
Berry,  85—124;  Flemming  v.  Fleraming,  85—127;  Long  v.  Bank,  85  — 
355;  Mauney  v.  HolmtB,  87—428;  Daniel  v.  Laughlin,  87— 433. 

Sec.  1449.  By  what  rules  governed.    1871-'2,  c.  213,  s.  2. 

The  said  special  proceeding  shall  be  governed  by  the 


574  EXECUTORS,  ETC.  [Chap.  33. 

rules  of  practice  prescribed  for  special  proceedings,  ex- 
cept 80  far  as  the  same  are  modified  by  this  chapter. 

Sec.  1450.    Summons,    when     and     where     returnable. 
1871-'2,  c.  213,  s.  3. 

The  summons  in  said  special  proceeding  shall  be 
returnable  before  the  clerk  of  the  supeiior  court  of  the 
county  in  which  letters  testamentary  or  administration 
were  granted,  and  on  a  day  not  less  than  forty  nor  more 
than  one  hundred  days  from  the  issuing  thereof,  and  not 
less  than  twenty  days  after  the  service  thereof. 

Sec.  1451.  On  issuing  of  summons,    clerk   to   advertise. 
1871-'2,  c.  213,  s.  4. 

On  issuing  of  the  summons,  the  clerk  shall  advertise 
for  all  creditors  of  the  deceased  to  appear  before  him  on 
or  before  the  return  day  and  file  the  evidences  of  their 
claims. 

Sec.  1452.  Where  published,  and  for  what  time.    1871- 
'2,  c.  213,  s.  5. 

The  advertisement  shall  be  published  at  least  once  a 
week  for  not  less  than  six  weeks  in  some  newspaper 
which  may  be  thought  by  the  clerk  the  most  hkely  to 
inform  all  the  creditors,  and  shall  also  be  posted  at  the 
court  house  door  for  not  less  than  thirty  days.  If,  how- 
ever, the  estate  does  not  exceed  three  thousand  dollars  in 
value,  and  the  creditors  are  supposed  by  the  clerk  all  to 
reside  within  the  county  or  to  be  known,  publication  in 
a  newspaper  may  be  omitted,  and  in  lieu  thereof  the 
advertisement  shall  be  posted  at  four  public  places  in  the 
county;  besides  the  court  house  door.  Proof  of  personal 
service  on  a  creditor  or  that  a  copy  of  the  advertisement 
was  sent  to  him  by  mail  at  his  usual  address,  shall  be  as 
to  him  equivalent  to  publication. 

Sec.  1453.  Creditors  to  name  an  agent  to  receive  notices, 
&c.    1871-'2,  c.  213,  s.  6. 

The  creditors  of  the  deceased  on  or  before  the  required 
day  shall  file  with  the  clerk  the  evidences  of  their 
demands,  and  every  creditor  on  filing  such  claim  shall 
indorse  thereon  or  otherwise  name  some  person  or  place 
within  the  town  in  which  the  court  is  held,  upon  whom 
or  where  notices  in  the  cause  may  be  served  or  left,  other- 
wise he  shall  be  deemed  to  have  notice  of  all  motions, 
orders  and  proceedings  in  the  cause  filed  or  made  in  the 
clerk's  office. 


Chap.  33.]  EXECUTOES,  ETC.  575 

Sec.  1454.  How  demands  filed  shall  be  evidence.     1871- 
'2,  c.  213,  s.  7. 

If  the  evidence  of  the  demand  be  other  than  a  judg- 
ment, or  some  writing  signed  by  the  deceased,  it  shall  be 
accompanied  by  the  oath  of  the  creditor,  or  if  he  be 
non-resident  or  infirm  or  absent,  or  in  any  other  proper- 
case,  of  some  witness  of  the  transaction,  orof  someageut 
of  the  creditor,  that  to  the  best  of  his  knowledge  and  be- 
lief the  claim  is  just,  and  that  all  due  credits  have  been 
given. 

Isler  v.  Murphy,  76—52;  Long  v.  Bank,  85—354. 

Sec.  1455.  Kepresentative  to  file  list  of  demands  made  on 
him.    1871-'2,  c.  213,  s.  8. 

On  the  dav  of  his  appearance  the  personal  representa- 
tive shall  o'n  oath  give  to  the  clerk  a  list  of  all  claims 
against  the  deceased  of  which  he  has  received  notice  or 
has  any  knowledge,  with  the  names  and  residences  of 
the  claimants  to  the  best  of  his  knowledge  and  belief; 
and  if  any  pei-son  so  named  shall  have  failed  to  file  evi- 
dence of  his  claim,  the  clerk  shall  immediately  cause  a 
notice  requiring  him  to  do  so  to  be  served  on  him, 
which  may  be  done  by  posting  the  same  directed  to  him 
at  his  usual  address. 

Flemming  v.  Flemming,  85 — 137. 

Sec.  1456.  Clerk  to  exhibit  list  of  demands,  &c.,to  repre- 
sentative.    1871-'2,  c.  213,  s.  9. 

On  the  day  fixed  for  the  appearance  of  the  personal 
representative,  the  clerk  shall  exhibit  to  him  a  list  of  all 
the  claims  filed  in  his  office  with  the  evidences  thereof. 

Flemming  v.  Flemming,  85 — 127. 

Sec.   1457.    Representative  to  admit    or  deny  demands 
within  five  days.    1871-'2,  c.  213,  s.  10. 

Within  five  days  thereafter  the  defendant  shall  state 
in  writing  on  said  list,  or  on  a  separate  paper,  which  of 
said  claims  he  disputes  in  whole  or  in  part.  The  clerk 
shall  then  notify  the  creditor,  as  above  provided,  that  his 
claim  is  disputed,  and  the  creditor  shall  thereupon  file  in 
the  office  of  the  clerk  a  complaint  founded  on  his  said 
claim,  and  the  pleadings  shall  be  as  in  other  cases. 

Wiidswoith  V.  Davis,  75—159;  Graham  v.  Tate,  77—120;  Gates  v.  Lilly, 
84—643;  Flemming  v.  Flemming,  85—127. 


576  EXECUTOES,  ETC.  [Chap.  33. 

Sec.  1458.  What  clerk  to  <lo  when  issues  joined.    1871-'2, 
c.  313,  s.  11. 

If  the  issues  joined  be  of  law,  the  clerk  shall  send  the 
papeis  to  the  judge  of  the  superior  court  for  trial,  as  is 
provided  for  by  the  Code  of  Civil  Procedure  iu  like  oases. 
If  the  issues  shall  be  of  fact,  the  clerk  shall  send  so  much 
of  the  record  as  may  be  necessary  to  the  next  term  of  the 
superior  court  for  trial. 

Wadsworth  v.  Davis,  75—159;  Graham  v.  Tate,  77—130;  Gates  v.  Lilly, 
84—643. 

Sec.  1459.  Who  shall  pay  costs  of  issues.    1871-'2,c.  213, 
s.  12. 

If  any  personal  representative  shall  deny  the  liability 
of  his  deceased  upon  any  claim  evidenced  as  is  provided 
in  this  chapter,  and  the  issue  shall  finally  be  decided 
against  him,  the  costs  of  the  trial  shall  be  paid  by  him 
personally,  and  not  allowed  out  of  the  estate,  unless  it 
shall  appear  that  he  had  reasonable  cause  to  contest  the 
claim  and  did  so  bona  fide. 

Sec.  1460.  Failure  of  representative  to  appear,  what  may 
be  done.    1871'-2,  c.  213,  s.  13. 

If  the  personal  representative  shall  fail  to  appear  on 
the  return  day,  the  clerk  or  judge  of  the  superior  court 
may  permit  him  afterward  to  appear  and  plead  on  such 
terms  as  may  be  just. 

Sec.  1461.  Clerk  to  proceed  to  state  account.    1871-*2,  c. 
213,  s.  14. 

Immediately  after  the  return  day  the  clerk  or  judge 
shall  proceed  to  hear  such  evidence  as  shall  be  brought 
before  him,  and  to  state  an  account  of  the  dealings  of 
the  personal  representative  with  the  estate  of  his  deceased 
according  to  the  course  of  his  court. 

Sec.    1462.   Clerk    to    prepare    and    sign    final    report. 
1871-'3,  c.  313,  s.  15. 

After  the  clerk  shall  have  stated  the  account  and  pre- 
pared his  report,  he  shall  notify  all  the  parties  to  examine 
and  except  to  the  same.  Any  party  may  then  except  to  the 
same  in  whole  or  in  part.  The  clerk  shall  then  pass  on 
the  exceptions  and  prepare  and  sign  his  final  report  and 
judgment,  of  which  the  parties  shall  have  notice. 


Chap.  33.]  EXECUTORS,  ETC.  577 

Sec.  1463.  Times  of  notice,  &c.,  maybe  enlarged  bycleik 
orjudge.    1871-'2,  c.  313,  s.  16. 

If  no  length  of  notice,  or  no  time  for  the  douig  of  an 
act  is  stated  in  this  chapter,  the  time  shall  be  reasonable, 
and  in  any  case  it  may  be  enlarged  by  the  clerk  from 
time  to  time,  or  by  the  judge  of  the  superior  court,  on 
application  to  him  or  on  appeal  to  him  from  the  clerk. 

Sec.  1464.  Of  appeals  to  superior  court,  wbat  required. 
1871-'3,  c.  313,  s.  17. 

Any  party  may  appeal  from  a  final  judgment  of  the 
clerk  to  the  judge  of  the  superior  court  in  term  time,  on 
giving  an  undertaking  with  surety,  or  making  a  deposit, 
to  pay  all  costs  which  shall  be  recovered  against  him.  If 
any  creditor  shaU  appeal  and  give  such  security,  his  ap- 
peal shall  be  deemed  an  appeal  by  all  who  are  damaged 
by  the  judgment,  and  no  other  creditor  shall  be  required 
to  give  any  undertaking. 

Sec.  1465.  Clerk  to  file  papers  on  appeal.  1871-'3,  c.  313, 
s.  18. 

On  an  appeal  the  clerk  shaU  file  his  report  and  judg- 
ment and  all  the  papers  in  his  office  as  clerk  of  the 
superior  court,  and  enter  the  case  on  his  trial  docket  for 
the  next  term. 

Sec.  1466.  Creditors  in  prior  classes  may  docket  their  judg- 
ments, &c.    1871-'3,  c.  313,  s.  19. 

If  the  exceptions  and  questions,  from  the  decision  on 
which  the  appeal  is  taken,  affect  only  the  creditors  m  one 
or  more  classes,  the  creditors  in  the  prior  classes  by  the 
leave  of  the  clerk,  or  of  the  judge  of  the  superior  court, 
may  docket  their  judgments  and  issue  execution  thereon. 

Sec.  1467.  If  assets  sufficient  to  pay  any  class  of  debts. 
1871-'3,  c.  313,  s.  30. 

If  upon  taking  the  account  it  shall  be  admitted,  or  be 
found  without  appeal,  that  the  defendant  has  assets  suffi- 
cient, after  the  deduction  of  all  proper  costs  and  charges, 
to  pay  all  the  claims  which  have  been  presented  of  any 
one  or  more  of  the  classes,  the  clerk  shah  give  judgment 
in  favor  of  the  creditors  whose  debts  of  such  classes  have 
been  admitted,  or  adjudged  by  any  competent  court;  and 
if  any  claim  in  any  preferred  class  be  in  litigation,  the 
amount  of  such  claim,  with  the  probable  costs  of  the 
litigation,  shall  be  left  in  the  hands  of  the  personal  repre- 
ss 


578  EXECUTORS,  ETC.  [Chap.  33. 

sentative,  and  not  carried  to  the  credit  of  any  subsequent 
class  until  the  litigation  is  ended. 

Sec.  1468.  If  assets  insufficient  to  pay  all  claims  in  any 
class  of  debts.     1871-'2,  c.  213,  s.  21. 

If  the  assets  be  insufficient  to  pay  in  full  all  the  claims 
of  any  class,  the  amounts  thereof  having  been  found  or 
admitted  as  aforesaid,  the  clerk  may  adjudge  payment  of 
a  certain  part  of  such  claims,  proportionate  to  the  assets 
applicable  to  debts  of  that  class. 

Sec.  1469.  What  judgments  to  declare.     1871-'2,  c.  213, 
s.  22. 

All  judgments  given  by  a  judge  or  clerk  of  the  supe- 
rior court  against  a  personal  repi-esentative  for  any  claim 
against  his  deceased  shall  declare: 

(1)  The  certain  amount  of  the  creditor's  demand; 

(2)  The  amount  of  assets  which  the  personal  represen- 
tative has  applicable  to  such  demand.  Execution  may 
issue  only  for  this  last  sum  with  interest  and  costs. 

Sec.  1470.  No  judgments  to  fix  assets  unless,  &c.    1871- 
'2,  c,  213,  s.  23. 

No  judgment  of  any  court  against  a  personal  represen- 
tative shall  fix  him  with  assets,  except  a  judgment  of 
the  judge  or  clerk,  rendered  as  aforesaid,  or  the  judg- 
ment of  some  appellate  court  rendered  upon  an  appeal 
from  such  judgment.  All  other  judgments  shall  be  held 
merely  to  ascertain  the  debt,  unless  the  personal  repre- 
sentative by  pleading  expi-essly  admit  assets. 

Vaughn  v.  Stephenson,  69—213;  Ballard  v.  Kilpatrick,  71— 281 ;  Dunn  v. 
Barnes,  73 — 273;  Holmes  v.  Foster,  78 — 35;  Flemming  v.  Flemming,  85 — 
127. 

Sec.   1471.   Form  and  effect  of  execution.     1871-'2,  c. 
213,  s.  24. 

All  executions  issued  upon  the  order  or  judgment  of 
the  judge  or  clerk  or  of  any  appellate  court  against  any 
personal  representative,  rendered  as  aforesaid,  shall  run 
against  the  goods  and  chattels  of  the  deceased,  and  if 
none,  then  against  the  goods  and  chattels,  lands  and 
tenements  of  the  representative.  And  all  such  judg- 
ments docketed  in  any  county  shall  be  a  lien  on  the  prop- 
erty for  whicii  execution  is  adjudged  as  fully  as  if  it 
were  against  him  personally. 

Williams  v.  Green,  80—76. 


Chap.  33.]  EXECUTORS,  ETC.  579 

Sec.  1472.    Report,  evidence    of  assets    only  on  day  to 
wincli  it  relates.    1871-'3,  c.  213,  s.  25. 

The  account  and  report  and  adjudication  by  the  judge, 
clerk  or  any  appellate  court  shall  not  be  evidence  as  to 
the  assets  except  on  the  day  to  which  such  adjudication 
relates. 

Sec.  1473.  Affidavit  of  assets  afterwards  come   to  band, 
proceedings  on.     1871-'3,  c.  213,  s.  26. 

Any  creditor  may  afterwards,  on  filing  an  affidavit  by 
himself  or  his  agent,  that  he  believes  that  assets  have 
come  to  the  hands  of  the  personal  representative  since 
that  day,  and  on  giving  an  undertaking,  with  surety,  or 
making  a  deposit  for  the  costs  of  the  personal  representa- 
tive, may  sue  out  a  summons  against  him  alleging  sub- 
sequent assets,  and  the  proceedings  thereon  shall  be  as 
hereinbefore  prescribed,  so  far  as  the  same  may  be  neces- 
sary. 

Sec.  1474.   If  personal  assets  insufficient,  may  proceed 
against  land.     1871-'2,  c.  213,  s.  27. 

If  it  shall  appear  at  any  time  during,  or  upon,  or  after 
the  taking  of  the  account  of  a  personal  representative 
that  his  personal  assets  are  insufficient  to  pay  the  debts 
of  the  deceased  in  full,  and  that  he  died  seized  of  real 
property,  it  shall  be  the  duty  of  the  judge  or  clerk,  at  the 
instance  of  any  party,  to  issue  a  summons  in  the  name 
of  the  personal  representative  or  of  the  creditors  gene- 
rally, to  the  heirs,  devisees  and  others  in  possession  of 
the  "lands  of  the  deceased,  to  appear  and  show  cause  why 
said  lands  should  not  be  sold  for  assets. 

Wood  V.  Skinner,  79—92. 

Sec.  1475.  Proceedings  on  return  of  summons.    1871-'2, 
c.  213,  s.  28. 

Upon  the  return  of  the  summons  the  proceeding  shall 
be  as  is  directed  in  other  hke  cases. 

Sec.  1476.  Chapter  not  to  apply  to  probates,  &c.,  before 
July,  1869.     1871-'2,  c.  213,  s.  29.     1872-'3,  c.  179. 

This  chapter  shall  apply  only  to  cases  where  the  grant 
of  letters  of  collection  or  of  probate  or  of  administration 
shall  have  issued  on  or  after  the  first  day  of  July,  one 
thousand  eight  hundred  and  sixty-nine,  except  in  case  of 
administrations  de  bonis  non  upon  estates  where  the  for- 
mer letters  of  administration  or  letters  testamentary 
were  granted  prior  to  the  first  of  July,  one  thousand 


580  EXECUTORS,  ETC.  [Chap.  33. 

eight  hundred  and  sixty-nine,  in  all  which  cases  estates 
shall  be  administered,  closed  up  and  settled  according  to 
the  law  as  it  existed  just  prior  to  the  first  of  July,  one 
thousand  eight  hundred  and  sixty-nine. 

Latham  v.  Bell,  69—135;  Carlton  v.  Byers,  70—691;  Brandon  v.  Phelps, 
77-44;  Kingv.  Little,  77—138. 

Sec.  1477.  Proceedings  on  probates,  &c.,  before  July  1st, 
1869.    1871-'3,  c.  213,  s.  30. 

In  all  cases  where  an  action  has  been  or  shall  be 
brought  against  a  personal  representative  to  recover  a 
claim  against  his  deceased;  if  in  the  superior  court,  that 
court  shall  proceed  according  to  its  course;  if  before  a 
justice  of  the  peace,  and  the  representative  has  pleaded 
or  shall  plead  that  he  has  fully  administered,  the  justice 
shall  find  the  debt  and  return  the  papers  to  the  next  term 
of  the  superior  court  in  order  that  the  issue  in  respect  to 
the  assets  may  be  there  tried  and  determined  according 
to  the  course  of  the  court. 

Hooks  V.  Moses,  8  Ired.,  88;  Anderson  v.  Young,  Busb.,  408;  Hare 
T.  Parham,  4  Jones,  413. 

Sec.  1478.  Intestate's  estates,  how  distributed.    1868-'9, 
c.  113,  s.  53. 

The  surplus  of  the  estate,  in  case  of  intestacy,  shaU  be 
distributed  in  the  following  manner,  except  as  herein- 
after provided : 

(1)  If  there  are  not  more  than  two  children,  one-third 
part  to  the  widow  of  the  intestate,  and  aU  the  residue 
by  equal  portions  to  and  among  the  children  of  the  in- 
testate and  such  persons  as  legally  represent  such  chil- 
dren as  may  then  be  dead; 

(2)  If  there  are  more  than  two  children,  then  the 
widow  shall  share  equally  with  all  the  children  and  be 
entitled  to  a  child's  part; 

(3)  If  there  be  no  child  nor  legal  representative  of  a 
deceased  child,  then  one-half  the  estate  shall  be  allotted 
to  the  widow,  and  the  residue  be  distributed  equally  to 
every  of  the  next  of  kin  of  the  intestate,  who  ai-e  in 
equal  degree,  and  to  those  who  legally  represent  them; 

(4)  If  there  be  no  widow,  the  estate  shall  be  distrib- 
uted, by  equal  portions,  among  all  the  children,  and  such 
persons  as  legally  represent  such  children  as  may  be 
dead; 

(5)  If  there  be  neither  widow  nor  children,  nor  any 
legal  representative  of  the  children,  the  estate  shall  be 
distributed  equally  to  every  of  the  next  of  kin  of  the  in- 


Chap.  33.]  EXECUTOES,  ETC.  581 

testate,  who  are  in  equal  degree,  and  those  who  legally 
represent  them; 

(6)  But  if,  after  the  death  of  the  father  and  in  the 
lifetime  of  the  mother,  any  of  his  children  shall  die  in- 
testate, without  wife  or  children,  every  brother  or  sister, 
and  the  representatives  of  them,  shall  have  an  equal 
share  with  the  mother  of  the  deceased  child. 

■Williamson  v.  Smart,  Conf.  Rep.,  268  (146);  Grant  v.  Bustin,  1  D.  &  B. 
Eq.,  77;  Gillespie  v.  Foy,  5  Ired.  Eq.,  280;  Headen  v.  Headen,  7  Ired. 
Eq.,  159;  Hunter  v.  Husted,  Busb.  Eq.,  97;  Credle  v.  Credle,  Busb.,235; 
Alvany  v.  Powell,  1  Jon.  Eq.,  35;  Skinner  v.  Wynne,  3  Jon.  Eq.,  41; 
Worth  V.  McNeill,  4  Jon.  Eq.,  273;  Johnston  v.  Chesson,  6  Jon.  Eq., 
146;  Nelson  v.  Blue,  63—659;  Arrington  v.  Dortch,  77—367. 

Sec.  1479.  Husband  to  administer  on  the  estate  of  a  wife 
who  dies  intestate.    1871-'2,  c.  193,  s.  32. 

If  any  married  woman  shaU  die  wholly  or  partially  in- 
testate, the  surviving  husband  shall  be  entitled  to  admin- 
ister on  her  personal  estate,  and  shaU  hold  the  same,  sub- 
ject to  the  claims  of  her  creditors  and  others  having 
rightful  demands  against  her,  to  his  own  use,  except  as 
hereinafter  provided.  If  the  husband  shall  die  after  his 
wife,  but  before  administering,  his  executor  or  adminis- 
trator or  assignee  shall  receive  the  personal  property  of 
the  said  wife,  as  a  part  of  the  estate  of  the  husband,  sub- 
ject as  aforesaid,  and  except  as  hereinafter  provided. 

Sec.  1480.  Right  of  administration  lost  upon  a  dissolu- 
tion of  the  marriage,  &c.    1871-'2,  c.  193,  s.  42. 

When  a  marriage  shall  be  dissolved  a  vinculo,  the  par- 
ties respectively  shall  thereby  lose  all  his  or  her  right  to 
administer  on  the  estate  of  the  other,  and  to  a  distribu- 
tive share  in  the  personal  property  of  the  other,  and 
every  right  and  estate  in  the  personal  estate  of  the 
other. 

Sec.  1481.  Elopement  and  adultery  of  wife  forfeits  her 
right  to  administer  on  husband's  estate,  &c.  1871-'2, 
c.  193,  s.  44. 

If  any  married  woman  shall  elope  with  an  adulterer, 
and  shall  not  be  living  with  her  husband  at  his  death, 
she  shall  thereby  lose  all  right  to  a  distributive  share  in 
the  personal  property  of  her  husband,  and  all  right  to 
administer  on  his  estate. 


582  EXECUTOES,  ETC.  [Chap.  33. 

Sec.  1482.  Husband's  right  to  administer,  &c.,  upon 
wife's  estate,  wlien  and  liow  lost.  1871-'2,  c.  193,  s. 
45. 

If  any  husband  shall  separate  himself  from  his  wife, 
and  be  living  in  adultery  at  her  death,  or  if  she  shall 
have  obtained  a  divorce  a  mensa  et  thoro,  and  shall  not 
be  living  with  her  husband  at  her  death,  or  if  the  hus- 
band shall  have  abandoned  his  wife,  or  shall  have  mali- 
ciously turned  her  out  of  doors,  and  shall  not  be  living 
with  her  at  her  death,  he  shall  thereby  lose  all  his  right 
and  estate  of  wha,tever  character  in  and  to  her  personal 
property,  and  all  right  to  administer  on  her  estate. 


Sec.  1483.  Advancements  to  be  accounted  for.    1868-'9, 
c.  113,  s.  54. 

Children  who  shall  have  any  estate  by  the  settlement 
of  the  intestate,  or  shall  be  advanced  by  him  or  her  in 
his  or  her  lifetime,  shall  account  with  each  other  for  the 
same  in  the  distribution  of  the  estate  in  the  manner  as 
provided  by  the  second  rule  in  the  chapter  entitled  '  'De- 
scents, "and  shall  also  account  for  the  same  to  the  widow 
of  the  intestate  in  ascertaining  her  child's  part  of  the 
estate. 

Donnell  v.  Mateer,  5  Ired.  Eq.,  7;  Webb  v.  Lyon,  5Ired.  Eq.,  67;  Hender- 
SOD  V.  Womack,  6  Ired.  Eq.,  437:  Hicks  v.  Forest,  6  Ircd.  Eq.,  528;  Walton 
V.  Walton,  7  Ired.  Eq.,  138;  Banner  v.  Winburn,  7  Ired.  Eq..  143;  Hcaden 
V.  Headen,  7  Ired.  Eq.,  159;  Bridgers  v.  Hutchins,  11  Ired,,  68;  Tayloe  v. 
Bond,  Busb.  Eq.,  5;  Hunter  v.  Husted,  Busb.  Eq.,  97;  Credle  v.  Credle, 
Busb.,  235;  Davis  v.  Haywood,  1  Jon.  Eq.,  253;  Skinner  v.  Wynne,  2  Jon. 
Eq.,  41;  Shiver  v.  Brock,  2  Jon.  Eq.,  137;  Worth  v.  McNeil,  4  Jon.  Eq., 
272;  HoUister  v.  Attmore,  5  Jon.  Eq.,  373;  Banks  v.  Sliannouliouse, 
Phil,  284;  Hagler  v.  McCombs,  66—345;  Bason  v.  Harden,  72— 281;  James 
V.  James,  76 — 331;  Bradsher  v.  Cannady,  76 — 445;  Arrington  v.  Dortch, 
77—367;  Melvin  v.  Bnllard,  82—33. 

Sec.  1484.  Children  advanced  to  render  schedule.    1868- 
'9,  c.  113,  s.  55. 

Where  any  parent  shall  die  intestate,  who  had  in  his 
or  her  lifetime  given  to,  or  put  in  the  actual  possession 
of,  any  of  his  or  her  children,  any  personal  property  of 
what  nature  or  kind  soever,  such  child  shall  cause  to  be 
given  to  the  administrator  or  collector  of  the  estate  an 
inventory,  oa  oath,  setting  forth  therein  the  particulars 
by  him  or  her  received  of  the  intestate  in  his  or  her  life- 
time. 

Bradsher  v.  Cannady,  76—445. 


Chap.  33.]  EXECUTOES,  ETC.  583 

Sec.  1486.  Children    refusing   to    account  not   entitled. 
1868-'9,c.  113,  s.  56. 

In  case  any  child  who  had,  in  the  hfetirae  of  the  in- 
testate, received  a  part  of  said  intestate,  shall  refuse  to 
give  such  inventory,  he  shaU  be  considered  to  have  had 
and  received  his  full  share  of  the  deceased's  estate,  and 
shall  not  be  entitled  to  receive  any  further  part  or 
share. 

Bradsher  v.  Cannady,  76 — 445. 

Sec.  1486.  Illegitimate    children   next   of  kin  to   their 
mother,  when.    1868-'9,  c.  113,  s.  57. 

Every  illegitimate  child  of  the  mother  dying  intestate, 
or  the  issue  of  such  illegitimate  child  deceased,  shall  be 
considered  among  her  next  of  kin,  and  as  such  shall  be 
entitled  to  a  share  of  her  personal  estate  as  prescribed  in 
this  chapter. 

Kimborough  v.  Davis,  1  Dev.  Eg.,  71. 

Sec.  1487.  Illegitimate  children  next  of  kin  to  each  other. 
1868-'9,  c.  113,  s.  58. 

Illegitimate  children,  born  of  the  same  mother,  shall 
be  considered  legitimate  as  between  themselves  and  their 
representatives,  and  their  personal  estate  shall  be  dis- 
tributed in  the  same  manner  as  if  they  had  been  born  in 
lawful  wedlock.  And  in  case  of  the  death  of  any  such 
child  or  his  issue,  without  leaving  issue,  his  estate  shall 
be  disti'ibuted  among  his  mother  and  all  such  persons  as 
would  be  his  next  of  kin,  if  all  such  children  had  been 
born  in  lawful  wedlock. 

Kimborough  V.   Davis,  1  Dev.   Eq.,   71;Coorv.   Starling.  1   Jon.  Eq., 


Sec.  1488.  Executors,  &c.,  to  pay  over  at  the  end  of  two 
years.    1868-'9,  c.  113,  s.  59. 

No  executor,  administrator  or  collector,  after  two  years 
from  his  quahfication,  shall  hold  or  retain  in  his  hands 
more  of  the  deceased's  estate  than  amounts  to  his  neces- 
sary charges  and  disbursements  and  such  debts  as  he 
shall  legally  pay;  but  all  such  estate  so  remauiing  shall, 
immediately  after  the  expiration  of  two  years,  be  divided 
and  be  delivered  and  paid  to  such  person  to  whom  the 
same  may  be  due  by  law  or  the  will  of  the  deceased. 

Wliitted  V.  Webb,  2  D.  &  B.  Eq.,  442;  McKinder  v.  Littlejohn,  1  Ired., 
66;  Ilobbs  V.  Craige,  1  Ired.,  333;  State  v.  McAleer,  5  Ired.,6?2;  Allen  v. 
Smitherman,  6  Ired.  Eq.,  341;  Turnage  v.  Turnage,  7  Ired.  Eq.,  127. 


584  EXECUTOES,  ETC.  [Chap.  33. 

Sec.  1489.  Sums  to  be  reserved.    1868-'9,  c.  113,  s.  GO. 

But  if,  on  a  final  accounting  before  the  judge  or  clerk, 
it  appears  that  any  claim  exists  against  the  estate  which 
IS  not  due  or  on  which  suit  is  pending,  the  judge  or  clerk 
shall  allow  a  sum  sufficient  to  satisfy  such  claim,  or  the 
proportion  to  which  it  may  be  entitled,  to  be  retained  in 
the  hands  of  the  executor,  administrator  or  collector,  for 
the  purpose  of  being  applied  to  the  payment  when  due 
or  when  recovered,  with  the  expense  of  contesting  the 
same.  The  order  allowing  such  sum  to  be  retained  must 
specify  the  amount  and  nature  of  the  claim. 

Jackson  v.  Shields,  87—437. 

Sec.  1490.  Rights  of  action  survive  to  and  against  personal 
representative.    1868-'9,  c.  113,  s.  63. 

Upon  the  death  of  any  person,  all  demands  whatsoever, 
and  rights  to  prosecute  or  defend  any  action  or  special 
proceeding,  existing  in  favor  of  or  against  such  person, 
except  as  hereinafter  provided,  shall  survive  to  and 
against  the  executor,  administrator  or  collector  of  his 
estate. 

Rippey  v.  Miller,  11  Ired.,  247;  Butner  v.  Keelhn,  6  Jon.,  60;  Collier  v. 
Arrington,  Phil,  356;  Peebles  v.  N.  C.  Railroad  Co.,  63—238;  Shuler  v. 
Millsaps,  71—297;  Shields  v.  Lawrence,  72 — 13;  Sledge  v.  Reid,  73— 440; 
Price  V.  Cox,  83—261;  Allen  v.  Baker,  86—91;  Hannah  v  R  R  Co  ' 
87—351.  ■      '       ■' 

Sec.  1491.  Exceptions;  rights  which  die  with  the  person 
1868-'9,  c.  113,s.  64. 

The  following  rights  in  action  do  not  survive: 

(1)  Causes  of  action  for  hbel  and  for  slander,  except 
slander  of  title; 

(2)  Causes  of  action  for  false  imprisonment,  assault 
and  battery,  or  other  injuries  to  the  person,  where  such 
injury  does  not  cause  the  death  of  the  injured  party; 

Hannah  v.  R.  R.  Co.,  87—351. 

(3)  Causes  of  action  accruing  against  a  husband  by 
reason  of  his  marriage,  for  the  debts  of  the  wife  con- 
tracted by  her  before  marriage; 

(4)  Cases  where  the  relief  sought  could  not  be  enjoyed, 
or  granting  it  would  be  nugatory  after  death. 

Rippey  V.  Miller,  11  Ired.,  247;  Butner  v.  Keelhn,  6  Jon.,  60;  Collier  v. 
Arrington,  Pliil,,  35G;  Peebles  v.  N.  C.  Railroad  Co.,  63—238;  Shuler  v! 
Millsnps,  71—297;  Shields  v.  Lawrence,  72-^3;  Sledge  v.  Reid,  73— 440- 
Price  V.  Cox,  83-261.  '  ' 


Chap.  33.]  EXECUTORS.  ETC.  585 

Sec.  1493.  Deeds  may  be  made  by  executor,  &c.,  in  certain 
cases.  1868-'9,  c.  113,  s.  65.    1874-'5,  c.  251. 

When  any  deceased  person  shall  have  bona  fide  sold 
any  lands,  and  shall  have  given  a  bond  or  other  w^ritten 
contract  to  the  purchaser  to  convey  the  same,  and  the 
bond  or  other  wi-itten  contract  hath  been  duly  proved  and 
registered  in  the  county  where  the  lands  are  situated,  if 
within  the  state,  or,  if  not  in  the  state,  shaU  be  proved 
before  the  clerk  of  the  superior  court  and  registered  in 
the  county  where  the  obligee  Uves  or  obligor  died,  his  ex- 
ecutor, administrator  or  collector  may  execute  a  deed  to 
the  purchaser  conveying  such  estate  as  shall  be  specified 
in  the  bond  or  other  written  contract;  and  such  deed  shall 
convey  the  title  as  fully  as  if  it  had  been  executed  by  the 
deceased  obligor:  Provided,  that  no  deed  shaU  be  made 
but  upon  payment  of  the  price,  if  that  be  the  condition  of 
the  bond  or  other  written  contract. 

Hodges  V.  Hodges,  2  D.  &  B.  Eq.,  73;  Lindsay  v.  Coble,  2  Ired.  Eq.,  603; 
McCraw  v.  Gwin,  7Ired.  Eq.,  55;  Osborne  v.  McMillan,  5  Jon.,  109;  WMte 
V.  Hooper,  6  Jon.  Eq.,  153. 

Sec.  1493.  Liand  devised  to  be  sold  by  executors,  wlio  may 
sell.    1868-'9,  c.  113,s.  66, 

When  any  of  the  executors  of  a  person  making  a  will 
of  lands,  to  be  sold  by  his  executors,  die  or  refuse  to  take 
upon  them  the  administration;  or,  when  all  the  executors 
die,  or  refuse  to  take  upon  them  the  administration;  or, 
when  there  is  no  executor  named  in  a  will  devising  lands 
to  be  sold;  in  every  such  case,  such  executors  as  qualify, 
or  having  qualified,  do  survive,  or  the  administrator  with 
the  will  annexed,  may  sell  such  lands;  and  all  convey- 
ances, made  by  such  executors  or  administrators,  shaU  be 
effectual  to  convey  the  title  to  the  purchaser  of  the  estate 
so  devised  to  be  sold. 

Hester  v.  Hester,  2  Ired,  Eq.,  330. 

Sec.  1494.  Who  chargeable  as  executor  de  son  tort,   1868- 
'9,  c.  113,8.67. 

Every  person  who  shall  receive  goods  or  debts  of  any 
person  dying  intestate,  or  any  release  of  a  debt  due  the 
intestate,  upon  a  fraudulent  intent,  or  without  such  valu- 
able considwation  as  shall  amount  to  the  value  or  there- 
about, (except  it  be  in  the  satisfaction  of  some  debt  of  the 
value  of  the  same  goods  or  debts  to  him  owing  by  the  in- 
testate at  the  time  of  his  decease, )  shall  be  chargeable  as 
executor  of  his  own  wrong,  so  far  as  such  debts  and 
goods,  coming  to  his  hands,  or  whereof  he  is  released, 


686  EXECUTORS,  ETC.  [Chap.  33. 

will  satisfy,  deducting  all  just  debts  owing  to  him  by  the 
intestate,  and  all  other  payments  made  by  him. 

Norfleet  v.  Riddick,  3  Dev.,  221;  McMorine  v.  Storey,  4  D.  &  B.,  189 
Bailey  V.  Miller,  5  lied,  444;  Sturdivant  v.  Davis,  9  Ired.,  365;  Francis 
V.  Welch,  11  Ired.,  215;  Bridgers  v.  Moye,  Busb.  Eq.,  170;  Israel  v.  King, 
69—373;  Winchester;  v.  Grady,  73—115. 

Sec.  1495.  Devastavit  by  executors  or  administrators  of 
executors,  &c.    1868-'9,  c.  113,  s.  68. 

The  executors  and  administrators  of  persons,  who,  as 
rightful  executors  or  as  executors  in  their  own  wrong,  or 
as  administrators,  shall  waste  or  convert  to  their  own  use 
any  estate  or  assets  of  any  person  deceased,  shall  be 
chargeable  in  the  same  manner  as  their  testator  or  in- 
testate might  have  been. 

Sec.  1496.   Payments  of  executors,  &c.,  deemed  valid, 
when.    1869-'70,  c.  150,  s.  1. 

Where  any  executor  or  administrator  has  paid  any  debt 
of  his  testator  or  intestate  before  all  the  debts  of  higher 
dignity  have  been  paid  and  satisfied,  and  the  estate  of 
such  testator  or  intestate  was  at  the  time  of  such  pay- 
ment solvent,  but  has  since  been  rendered  insolvent  by 
the  emancipation  of  the  slaves,  or  the  insolvency  of  the 
debtors  of  the  estate,  or  other  cause,  witlwut  any  fault  or 
want  of  diligence  on  the  part  of  the  executor  or  adminis- 
trator, or  when  any  creditor  has  refused  to  accept  pay- 
ment of  his  debt  in  Confederate  currency,  and  such  cur- 
rency was  afterwards  used  by  the  executor  or  administra- 
tor in  payment  of  debts  of  the  estate,  or  it  became  of  no 
value  by  the  termination  of  the  war,  in  all  such  cases 
payments  thus  made  shall  be  deemed  and  held  valid  in 
law,  and  shall  be  allowed  to  such  executor  or  administra- 
tor in  all  suits  by  creditors  of  the  estate  seeking  to  charge 
such  executor  or  administrator  with  assets  of  the  estate 
or  with  devastavit  thereof  without  regard  to  the  dignity 
of  the  debt  thus  paid,  or  on  which  such  suit  may  be 
brought. 

Sec.  1497.  Right  of  action  to  survive  to  executor  of  exec- 
utor, &c.    1868-'9,  c.  113,  s.  69. 

Executors  and  administrators,  and  executors  of  execu- 
tors, shall  have  actions  in  like  manner  as  the  first  testator 
or  intestate  might  have  had  against  any  person,  his  exec- 
utors and  administrators,  in  all  cases,  except  where  such 
actions,  being  commenced,  are  not  allowed  by  statute  to 
be  revived  on  the  death  of  any  party. 

Thompson  v.  Badham,  70—141;  Hannah  v.  R.  R.  Co.,  87—351 


Chap.  33.]  EXECUTORS,  ETC.  587 

Sec.  1498.  Action  for  wrongful  act   or   neglect  causing 
(leatli,     1868-'9,  c.  113,  s.  70. 

Whenever  the  death  of  a  person  is  caused  by  a  wrong- 
ful act,  neglect  or  default  of  another,  such  as  would,  if 
the  injured  party  had  lived,  have  entitled  him  to  an  ac- 
tion for  damages  therefor,  the  person  or  corporation  that 
would  have  been  so  liable,  and  his  or  their  executors,  ad- 
ministrators, collectors  or  successors,  shall  be  liable  to  an 
action  for  damages,  to  be  brought  within  one  year  after 
such  death,  by  the  executor,  administrator  or  collector  of 
the  decedent;  and  this  notwithstanding  the  death,  and 
although  the  wrongful  act,  neglect  or  default,  causing  the 
death,  amount  in  law  to  a  felony. 

Kesler  v.  Smith,  66 — 154;  Burton  v.  Eailroad  Co.,  82 — 504;  Hannah  v. 
E.  R.  Co.,  87—351. 

Sec.  1499.  Measure  of  damages.    1868-'9,  c.  113,  s.  71. 

The  plaintiff  in  such  action  may  recover  such  damages 
as  are  a  fair  and  just  compensation  for  the  pecuniary  in- 
jury resulting  from  such  death. 

Collier  v.  Arrington,  Phil.,  356;  Kesler  v.  Smith,  66—154;  Burton  v. 
Railroad  Co.,  82—504;  Burton  v.  Railroad  Co.,  84^193. 

Sec.  1500.  How  recovery  to  be  applied.    1868-'9,  c.  113, 
s.  72. 

The  amount  recovered  in  such  action  is  not  liable  to  be 
applied  as  assets,  in  the  payment  of  debts  or  legacies, 
but  shall  be  disposed  of  as  provided  in  this  chapter  for 
the  distribution  of  personal  property  in  case  of  intes- 
tacy. 

Kesler  v.  Smith,  66—154. 

Sec.  1501.  Recovery  of  assets  and  possession  of  real  prop- 
erty, &c.    1868-'9,  c.  113,  s.  73. 

Executors,  administrators  or  collectors  may  maintain 
any  appropriate  action  or  proceeding  to  recover  assets, 
and  to  recover  possession  of  the  real  property  of  which 
executors  are  authorized  to  take  possession  by  will;  and 
to  recover  for  any  injury  done  to  such  assets  or  real 
property  at  any  time  subsequent  to  the  death  of  the  de- 
cedent. 

Sec.    1503.    'Executors,    &c.,   to   liold  in  joint  tenancy. 
1868-'9,  c.  113,  s.  74. 

Every  estate  vested  in  executors,  administrators  or 
collectors,  as  such,  shall  be  held  by  them  in  joint  ten- 
ancy. 


588  EXECUTORS,  ETC.  [Chap.  33 

Sec.  1503.  Sales  of  real  property  under  wills.    1868-*9,  c. 
113,  s.  75. 

Sales  of  real  property  made  pursuant  to  authority  given 
by  will,  unless  the  will  otherwise  dii-ects,  may  be  pubUc 
or  private,  and  on  such  terms  as,  in  the  opinion  of  the 
executor,  are  most  advantageous  to  those  interested 
therein. 

Worth  V.  McAdeu,  1  D.  &  B.  Eq.,  199. 

Sec.  1504.  When  property  paid  to  the  University.    1868- 
»9,  c.  113,  s.  76. 

All  sums  of  money,  or  other  estate  of  whatever  kind, 
which  shall  remain  in  the  hands  of  any  executor,  admin- 
istrator or  collector  for  five  years  after  his  qualification, 
unrecovered  or  unreclaimed  by  suit,  by  creditors,  next  of 
kin,  or  others  entitled  thereto,  shall  be  paid  by  the  ex- 
ecutor, administrator  or  collector  to  the  trustees  of  the 
University  of  North  Carolina;  and  the  said  trustees  are 
authorized  to  demand,  sue  for,  recover  and  collect  such 
moneys  or  other  estate  of  whatever  kind,  and  hold  the 
same  without  Uability  for  profit  or  interest,  until  a  just 
claim  therefor  shall  be  preferred  by  creditors,  next  of 
kin,  or  others  entitled  thereto;  and  if  no  such  claim  shall 
be  preferred  within  ten  years  after  such  money  or  other 
estate  be  received  by  the  said  trustees,  then  the  same  shall 
be  held  by  them  absolutely. 

Oliveira  v.  University,  Phil.  Eq.,  69. 

Sec.   1505.    Bidding  in  real  property.    1868-'9,  c.  113, 

s.  77. 
At  any  auction  sale  of  real  property  belonging  to  the 
estate,  the  executor,  administrator  or  collector  may  bid 
in  the  property  and  take  a  conveyance  to  himself  as  ex- 
ecutor, administrator  or  collector  for  the  benefit  of  the 
estate,  when,  in  his  opinion,  this  is  necessary  to  prevent 
a  loss  to  the  estate. 

State  V.  Hanner,  64—668. 

Sec.  1506.  Promises  to  charge  executor,  &c.,  personally, 
to  be  in  writing.    1868-'9,  c.  113,  s.  78. 

No  action  shall  be  brought  whereby  to  charge  an  ex- 
ecutor, administrator  or  collector  upon  a  special  promise 
to  answer  damages,  or  to  pay  the  decedent's  debts  out  of 
his  own  estate,  unless  the  agreement  upon  which  such 
action  is  brought,  or  some  memorandum  or  note  thereof, 
shall  be  in  writing  and  signed  by  such  executor,  adminis- 


Chap.  33.]  EXECUTOKS,  ETC.  589 

trator  or  collector,  or  by  some  other  person  thereunto  by 
him  lawfully  authorized. 

Sleighter  v.  Harrington,  2  Mur.,  332;  Williams  v.  Chaffin,  2  Dev.,  333; 
Smithwick  v.  Shepherd,  4  Jon.,  196;  Norton  v.  Edwards,  66—367. 

Sec.  1507.  All  actions  to  he  in  representative  capacity. 
1868-'9,  c.  113,  s.  79. 

All  actions  and  proceedings  brought  by  or  against  ex- 
ecutors, administrators  or  collectors,  upon  any  cause  of 
action  or  right  to  which  the  estate  is  the  real  party  in  in- 
terest, must  be  brought  by  or  against  them  in  their  repre- 
sentative capacity. 

Rogers  v.  Gooch,  87 — i42. 

Sec.  1508.  Appearance  by  one  of  several  executors,  &c. 
1868-'9,  c.  113,  s.  81. 

In  actions  against  several  executors,  administrators  or 
collectors,  they  are  all  to  be  considered  as  one  person, 
representing  the  decedent;  and  if  the  summons  is  served 
on  one  or  more,  but  not  all,  the  plaintiff  may  proceed 
against  those  served,  and  if  he  recovers,  ju-dgmeut  may 
be  entered  against  all. 

Sec.  1509.  Actions  against  executors,  &c.,  by  a  creditor. 
1868-'9,  c.  113,  s.  82. 

An  action  may  be  brought  by  a  creditor  against  an 
executor,  administrator  or  collector  on  a  demand  at  any 
time  after  it  is  due.  but  no  execution  shall  issue  against 
the  executor,  administrator  or  collector  on  a  judgment 
therein  against  him  without  leave  of  the  court,  upon 
notice  of  twenty  days  and  upon  proof  that  the  defend- 
ant has  refused  to  pay  such  judgment  its  rateable  part, 
and  such  judgment  shall  be  a  lien  on  the  property  of  the 
defendant  only  from  the  time  of  such  leave  granted. 

Heiligv.  Foard,  64— 710;  Vaughn  v.  Stephenson,  69—312;  Grayham  v. 
Tate,  77— 120;  Shields  v.  Payne,  80—291;  Hoover  v.  Berryhill,  84^-133; 
Greer  v.  Cagle,  84r-385;  Long  v.  Bank,  85—854;  Ray  v.  Patton,  86—386. 

Sec.  1510.  Legacies  and  distributive  shares,  bow  recov- 
able.    1868-'9,  c.  113,  s.  83. 

Legacies  and  distributive  shares  may  be  recovered  from 
an  executor,  administrator  or  collector  by  petition  pre- 
ferred in  the  superior  court,  at  any  time  after  the  lapse 
of  two  years  from  his  qualification,  unless  the  executor, 
administrator  or  collector  shall  sooner  file  his  final  account 
for  settlement.     The  suit  shall  be  commenced  and  the 


590  EXECUTOES,  ETC.  [Chap.  33. 

proceedings  therein  conducted  as  prescribed  in  other  cases 

of  special  proceedings. 

Williams  V.  Williams,  71 — 427;  Hendrick  v.  Mayfield,  74—626;  Ham  v. 
Kornegay,  85—119. 

Sec.  1511.  Actions  against  executors,  administrators,  &c. 
1876-'7,  c.  241,  s.  6. 

In  addition  to  the  remedy  by  special  proceeding,  actions 
against  executors,  administrators  and  collectors  may  be 
brought  originally  to  the  superior  court  at  term  time;  and 
in  all  such  cases  it  shall  be  competent  for  the  court  in 
which  said  actions  shall  be  pending  to  order  an  account 
to  be  taken  by  such  person  or  persons  as  said  court  may 
designate,  and  to  adjudge  the  application  or  distribution 
of  the  fund  ascertained,  or  to  grant  other  relief,  as  the 
nature  of  the  case  may  require. 

Hunt  V.  Sneed,  64—176;  Heilig  v.  Foard.  64—710;  Miller  v.  Barnes,  65 
—67;  Williams  v.  Williams,  70—665;  Williams  v.  Williams,  71—427;  Hen. 
drick  V.  Mayfield,  74—626:  Haywood  v.  Haywood,  79—43;  Bratton  v. 
Davidson,  79 — 423;  Devereux  v.  Devereux,  81—12;  Pegram  v.  Armstrong, 
82—326. 

Sec.  1512.  Judge  or  court  to  have  power  to  adjudge  pay- 
ment of  legacies  and  distributive  shares. 

It  shall  be  in  the  power  of  the  judge  or  court,  on 
petition  or  action,  within  two  years  from  the  qualifica- 
tion of  an  executor,  administrator  or  collector,  to  ad- 
judge the  payment  in  full  or  partially,  of  legacies  and 
distributive  shares,  on  such  terms  as  the  court  shall 
deem  proper,  when  there  shall  be  no  necessity  for  retain- 
ing the  fund. 

Hobbs  V.  Craige,  1  Ired.,  333;  Turnage  v.  Turnage,  7  Ired.  Eq.,  127. 

Sec.  1513.  Right    of  succeeding  executor,  &c.,  to  issue 
execution.    1868-'9,  c.  113,  s.  84. 

Any  executor,  administrator  or  collector  may  have 
execution  issued  on  any  judgment  recovered  by  any 
person  who  preceded  him  in  the  administration  of  the 
estate,  or  by  the  decedent,  in  the  same  cases  and 
the  same  manner  as  the  original  plaintiff  might  have 
done. 

Durham  v.  Bostwick,  72—353. 

Sec.  1514.  Actions    continued    in  case  of  revocation  of 
letters.    1868-'9,  c.  113,  s.  85. 

In  case  the  letters  of  an  executor,  administrator  or  col- 


Chap.  33.]  EXECUTORS,  ETC.  591 

lector  are  revoked,  pending  an  action  to  which  he  is  a 
party  the  adverse  party  may,  notwithstanding,  continue 
the  action  against  him  in  order  to  charge  him  pei'son- 
ally  If  such  party  does  not  elect  so  to  do,  within  six 
months  after  notice  of  such  revocation,  the  action  may 
be  continued  against  the  successor  of  the  executor,  ad- 
ministrator or  collector  in  the  administration  of  the  es- 
tate, in  the  same  manner  as  in  case  of  death. 

Sec.  1515.  When    executor  to  give    bond.     1868-'9,  c. 
113,  s.  80. 

Executors  shall  give  bond  as  prescribed  by  law,  in  the 
following  cases:  ,     „  , ,       .±         ^ 

(1)  Where  the  executor  resides  out  of  the  state,  and  no 
foreign  executor  has  any  authority  to  intermeddle  with 
the  estate  until  he  shall  have  entered  into  bond  which 
must  be  done  within  the  space  of  one  year  after  the  death 
of  the  testator,  and  not  afterwards; 

(2)  When  a  man  marries  a  woman  who  is  an  executrix, 
and  if  the  husband  in  such  case  fail  to  give  bond,  the 
clerk,  on  application  of  any  creditor  or  other  party  in- 
terested in  the  estate,  shall  revoke  the  letters  issued  to  the 
wife  and  grant  administration  with  the  will  annexed  to 
some  other  person; 

(3)  Where  an  executor,  other  than  such  as  may  have 
already  given  bond,  obtains  an  order  to  sell  any  portion 
of  the  real  estate  for  the  payment  of  debts,  as  hereinbe- 
fore provided;  and  the  court  or  clerk  to  whom  apphca- 
tion  is  made  shall  require,  before  granting  any  order  of 
sale,  such  executor  to  enter  into  bond. 

Barnes  v.  Brown,  79 — 401. 

Sec.  1516.  Remedy  on  bond.    1868-'9,  c.  113,  s.  87. 

Every  person  injured  by  the  breach  of  any  bond  given 
by  an  executor,  administrator  or  collector  may  put  the 
same  in  suit  and  recover  such  damages  as  he  may  have 
sustained. 

Williams  V  Hicks,  1  Mur,,  437;  Mayo  v.  Mayo,  2  Hawks,  329;  Carring- 
ton  V  Carrington,  3  Dev.,  529;  State  v.  McKay,  6  Ired.,  397;  Smith  v.  For- 
tesci-.c,  Busb.  Eq.,  127;  Latla  v.  Kuss,  8  Jon.,  Ill;  Neal  v.  Becknell,  8o— 
299. 

Sec.  1517.  Bondto  be  prosecuted  on  revocation  of  letters. 

18G8-'9,  c.  113,  s.  88. 

Whenever  the  letters  of  an  executor,  administrator  or 

collector  are  revoked,  his  bond  may  be  prosecuted  by  the 

person  or  persons  succeeding  to  the  administration  ot  the 


592  EXECUTORS,  ETC.  [Chap.  33. 

estate,  and  a  recovery  may  bo  had  thereon  to  the  full  ex- 
tent of  any  damage  not  exceeding  the  penalty  of  the  bond 
sustamed  by  the  estate  of  the  decedent  by  the  acts  or 
omissions  of  such  executor,  administrator  or  collector, 
and  to  the  full  value  of  any  property  received  and  not 
duly  administered.  Moneys  so  recovered  shall  be  assets 
m  the  hands  of  the  person  recovering  them. 

Latham  V.  Bell,  69—135;  Carlton  v.  Byers,  70—691. 

Sec.  1518.  Requiring  uew  bouds  or  new  sureties.     1868- 
'9,  c.  113,  s.  89. 

If  complamt  be  made  on  affidavit  to  the  clerk  of  the 
superior  court  that  the  surety  in  any  bond  of  an  executor 
administrator  or  collector  is  insufficient,  or  that  one  or 
more  of  such  sureties  is  or  is  about  to  become  a  non-resi- 
dent of  this  state,  or  that  the  bond  is  inadequate  in 
amount,  the  clerk  must  issue  an  order  requiring  the  prin- 
cipal m  the  bond  to  show  cause  why  he  should  not  give  a 
new  bond,  or  further  surety,  as  the  case  may  be.  On  the 
return  of  the  order  duly  executed,  if  the  objections  in 
the  complaint  are  found  vaUd,  the  clerk  shall  make  an 
order  requiring  the  party  to  give  further  siu:ety  or  a  new 
bond  in  a  larger  amount,  within  a  reasonable  time. 

Sec.  1519.  Surety  in  danger  of  loss,  &c.,  entitled  to  relief. 
1868-'9,  c.  113,  s.  90. 

Any  surety  on  the  bond  of  an  executor,  administra- 
tor or  collector,  who  is  in  danger  of  sustaining  loss  by 
his  suretyship,  may  exhibit  his  petition  on  oath  to  the 
clerk  of  the  superior  court  wherein  the  bond  was  given 
setting  forth  particularly  the  circumstances  of  his  case! 
and  asking  that  such  executor,  administrator  or  collector 
be  removed  from  office,  or  that  he  give  security  to  indem- 
nify the  petitioner  against  apprehended  loss,  or  that  the 
petitioner  be  released  from  responsibihty  on  account  of 
any  future  breach  of  the  bond.  The  clerk  shall  issue  a 
citation  to  the  principal  in  the  bond,  requiring  him,  with- 
in ten  days  after  service  thereof,  to  answer  the  petition. 
If,  upon  the  hearing  of  the  case,  the  clerk  deem  the 
surety  entitled  to  relief,  he  may  grant  the  same  in  such 
manner  and  to  such  extent  as  may  be  just.  And  if  the 
principal  m  the  bond  gives  new  or  additional  security,  to 
the  satisfaction  of  the  clerk,  within  such  reasonable  time 
as  may  be  required,  the  clerk  may  make  an  order  releas- 


Chap.  33.]  EXECUTOES,  ETC.  593 

ing  the  surety  from  liability  on  the  bond  for  any  subse- 
quent act,  default  or  misconduct  of  the  principal. 

Governor  v.  Go-wan,  3  IreJ.,  343;  Hunt  v.  Snced,  64—176;  Hunt  v. 
Sneed,  64—180;  Neighbors  v.  Hamlin,  78 — 43;  Barnes  v.  Brown,  79—401. 

Sec.   1520.  Kevocatiou  of  letters  for  failure  to  comply. 
1868-'9,  c.  113,  s.  91. 

If  any  person  required  to  give  a  new  bond,  or  fm'ther 
security,  or  security  to  indemnify,  under  the  two  pre- 
ceding sections,  fails  to  do  so  within  the  time  specified  in 
any  such  order,  the  clerk  must  forthwith  revoke  the  let- 
ters issued  to  such  person,  whose  right  and  authority, 
respecting  the  estate,  shall  thereupon  cease. 

Sec.  1521.  Appointment  of  successor;  interlocutory  or- 
der.   1868-'9,  c.  113,  s.  92. 

In  all  cases  of  the  revocation  of  letters,  the  clerk  must 
immediately  appoint  some  other  person  to  succeed  in  the 
administration  of  the  estate;  and  pending  any  suit  or 
proceeding  between  parties  respecting  such  revocation, 
the  clerk  is  authorized  to  make  such  interlocutory  order 
as,  without  injury  to  the  rights  and  remedies  of  credit- 
ors, may  tend  to  the  better  securing  of  the  estate. 

Taylor  v.  Biddle,  71—1;  Tn  re.  Brinson.  73—278. 

Sec.  1522.  Administering  before  letters  granted ;  penalty. 
1868'-9,  c.  113,  s.  93. 

No  person  shall  enter  upon  the  administration  of  any 
decedent's  estate  until  he  has  obtained  letters  therefor, 
under  the  penalty  of  one  hundred  dollars,  one-half  to  the 
use  of  the  informer  and  the  other  half  to  the  state;  but 
nothing  herein  contained  shall  prevent  the  family  of  the 
deceased  from  using  so  much  of  the  crop,  stock  and  pro- 
visions on  hand  as  may  be  necessary,  until  the  widow's 
year's  support  is  assigned  therefrom,  as  prescribed  by 
law. 

Israel  v.  King,  69—373. 

Sec.  1523.  Service  on  absent  executor,  how  made.    1868- 
'9,  c.  113,  s.  94. 

Whenever  process  may  issue  against  an  executor  who 
has  not  given  bond,  and  the  same  cannot  be  served  upon 
him  by  reason  of  his  absence  or  concealment,  service  of 
such  process  may  be  made  by  publication  in  the  manner 
prescribed  in  the  chapter  entitled  Code  of  Civil  Procedure. 


501  EXECUTOES,  ETC.  [Chap.  33. 

Sec.  1524.  Commissions  allowed  executor;  proviso.  1868- 
'9,  c.  113,  s.  95.     1869.'70,  c.  189. 

The  clerks  of  the  superior  court  are  authorized  and  di- 
rected to  allow  commissions  to  executors,  administrators 
and  collectors  on  tiling  their  tiual  accounts  for  settlement, 
not  exceeding  five  per/'.ent.  upon  the  amount  of  receipts 
and  expenditures,  wh'ich  shall  appear  to  be  fairly  made 
in  the  course  of  administration;  and  such  allowance  may- 
be retained  out  of  the  assets  against  creditors  and  all 
other  persons  claiming  an  interest  in  the  estate.  And  the 
clerk,  in  making  such  allowance,  shall  consider  the 
trouble  and  time  expended  in  the  management  of  the 
business:  Provided,  that  in  sales  of  land,  for  payment  of 
debts,  commissions  shall  not  be  allowed  on  any  larger 
amount  of  the  proceeds  than  the  sum  actually  applied  in 
payment  of  debts:  Provided  further,  that  nothing  in  this 
section  contained  shall  prevent  any  executor,  adminis- 
trator or  collector  from  retaining  for  necessary  charges 
and  disbursements  in  the  management  of  the  estate. 
And  any  judge  of  the  superior  court  or  any  commissioner 
appointed  by  said  court,  to  take  and  state  an  account  of 
the  assets  of  any  deceased  person  in  the  hands  of  an  ex- 
ecutor, administrator  or  collector,  upon  any  plea  of  fully 
administered,  shall  have  power  and  be  authorized  and  di- 
rected to  allow  such  executor,  administrator  or  collector 
not  exceeding  five  per  cent,  upon  the  amount  of  receipts 
and  expenditures  which  shall  appear  upon  the  trial  of 
said  cause  or  taking  of  such  account  to  have  been  fairly 
made  in  the  course  of  administration. 

Finch  V.  Ragland,  2  Dev.  Eq.,  1S7;  Peyton  v.  Smith,  3  D.  &  B.  Eq.,  325; 
Walton  V.  Avery,  3  D.  &  B.  Eq.,  405;  Whitted  v.  Webb,  2  D.  &  B.  Eq., 
443;  Lynch  v.  Johnson,  11  Ired.,  224;  Morris  v.  Morris,  1  Jon.  Eq.,  326. 

Sec.  1525.    Executors,  &c.,  may  file  petition  for  settle- 
ment.   1868-'9,  c.  113,  s.  96. 

An  executor,  administrator  or  collector,  who  has  filed 
his  final  account  for  settlement  may,  at  any  time  there- 
after, file  his  petition  against  the  parties  interested  in  the 
due  administration  of  the  estate,  in  the  superior  court  of 
the  county  in  which  he  qualified,  or  before  the  judge  in 
term  time,  setting  forth  the  facts,  and  praying  for  an  ac- 
count and  settlement  of  the  estate  commited  to  his  charge. 
The  petition  shall  be  proceeded  on  in  the  manner  pre- 
scribed by  law;  and,  at  the  final  hearing  thereof,  the 
judge  or  clerk  may  make  such  order  or  decree  in  the 
premises  as  shall  seem  to  be  just  and  right. 

Bumpass  v.  Cliambei-s,  77 — 357;  Houston  v.  Howie,  84 — 349. 


Chap.  33.]  EXEOUTOES,  ETC.  595 

Sec.  1526.  Payment  of  legacy  or  distributive  share  due 
absentee  or  minor.    1868-'9,  c.  113,  s.  97. 

When  any  balance  of  money  or  other  estate,  which  is 
due  an  absent  defendant  or  infant  without  guardian,  is 
found  in  the  hands  of  an  executor,  administrator  or 
collector  who  has  preferred  his  petition  for  settlement, 
the  court  or  judge  may  direct  such  money  or  other  estate 
to  be  paid  into  court,  to  be  invested  upon  interest,  or 
otherwise  managed  under  the  direction  of  the  judge,  for 
the  use  of  such  absent  person  or  infant. 

Sec.  1527.  Liability  and  compensation  of  clerk.    1868- 
'9,  c.  113,  s.  98. 

Every  clerk  of  the  superior  court  who  may  be  intrusted 
with  money  or  other  estate  in  such  case  shall  be  liable  on 
his  official  bond  for  the  faithful  discharge  of  the  duties 
enjoined  upon  him  by  the  judge  in  relation  to  said  estate, 
and  he  may  receive  such  compensation  for  his  services  as 
the  judge  may  allow. 

Sec.  1528.  Heirs,  &c.,  jointly  liable  for  debts,  &c.    1868- 
'9,  c.  113,  s.  99. 

All  persons  succeeding  to  the  real  or  personal  property 
of  a  decedent,  by  inheritance,  devise,  bequest  or  distribu- 
tion, shall  be  liable  jointly,  and  not  separately,  for  the 
debt  of  such  decedent. 

Sec.  1529.  liimit  of  liability.    1868-'9,  c.  113,  s.  100. 

No  person  shall  be  hable,  under  the  preceding  section, 
beyond  the  value  of  the  property  so  acquired  by  him,  or 
for  any  part  of  a  debt  that  might  by  action  or  other  due 
proceeding  have  been  collected  from  the  executor,  ad- 
ministrator or  collector  of  the  decedent,  and  it  is  incum- 
bent on  the  creditor  to  show  the  matters  herein  required 
to  render  such  person  liable. 

Brandon  v.  Phelps,  77—45;  Badger  v.  Daniel,  79—373. 

Sec.  1530.  Apportionment  of  recovery;  costs.    1868-'9,  c. 
113,  s.  101. 

In  any  such  action  the  recovery  must  be  apportioned 
in  proportion  to  the  assets  or  property  received  by  each 
defendant,  and  judgment  against  each  must  be  entered 
accordingly.  Costs  in  such  actions  must  be  apportioned 
among  the  several  defendants,  in  proportion  to  the 
amount  of  the  recovery  against  each  of  them. 


596  EXECUTORS,  ETC.  [Chap.  33. 

Sec.  1531.  Priority  of  debts,    1868-'9,  c.  113,  s.  102. 

Eveiy  person  who  is  liable  for  the  debts  of  a  decedent 
must  observe  the  same  preferences  in  the  payment 
thereof  as  are  established  in  this  chapter;  nor  shall  the 
commencement  of  an  action  by  a  creditor  give  his  debt 
any  preference  over  othex's. 

Sec.  1532.  Defence;  other  debts  of  equality  or  priority. 
1868-'9,  c.  113,  s.  103. 

The  defendants  in  such  action  may  show  that  there  are 
unsatisfied  debt  of  a  prior  class  or  of  the  same  class  with 
that  in  suit.  If  it  appeai-s  that  the  value  of  the  property 
acquired  by  them  does  not  exceed  the  debts  of  a  prior 
class,  judgment  must  be  rendered  in  their  favor.  If  it 
appears  that  the  value  of  the  property  acquired  by  them 
exceeds  the  amount  of  debts  which  are  entitled  to  a  pref- 
erence over  the  debt  in  suit,  the  whole  amount  which  the 
plaintiff  shall  recover  is  only  such  a  portion  of  the  excess 
as  is  a  just  proportion  to  the  other  debts  of  the  same  class 
with  that  in  suit. 

Heilig  V.  Foard,  64—710. 

Sec.  1533.  Debts  paid,  estimated  as  if  unpaid,  when. 
1868-'9,c.  113,8.  104. 

If  any  debts  of  a  prior  class  to  that  in  which  the  suit  is 
brought,  or  of  the  same  class,  has  been  paid  by  any  de- 
fendant, the  amount  of  the  debts  so  paid  shall  be  esti- 
mated, in  ascertaining  the  amount  to  be  recovered,  in  the 
same  manner  as  if  such  debts  were  outstanding  and  un- 
paid, as  prescribed  in  the  preceding  section. 

Brandon  v.  Phelps,  77 — i5;  Badger  v".  Daniel,  79 — 373. 

Sec.  1534.  How  to  compel  contributions  among  devisees 
and  legatees.    1868-'9,  c.  113,  s.  106. 

The  remedy  to  compel  contribution  shaU  be  by  petition 
or  action  in  the  superior  court  or  before  the  judge  in  term 
time  against  the  personal  representatives,  devisees,  lega- 
tees and  heirs  also  of  the  decedent,  if  any  part  of  the  real 
estate  be  undevised,  within  two  years  after  probate  of 
the  will,  and  setting  forth  the  facts  which  entitle  the 
party  to  rehef ;  and  the  costs  shaU  be  within  the  discre- 
tion of  the  couit. 

Houston  V.  Howie,  84 — 349. 

Sec.  1535.  Specific  devisee,  when  entitled  to  contribution. 
1868-'9,  c.  113,  s.  107. 

If,  upon  the  hearing  of  any  petition  for  the  sale  of  real 


Chap.  33.]  EXECUTORS,  ETC.  59Y 

estate  to  pay  debts,  under  this  chapter,  the  court  decree 
a  sale  of  any  part  that  may  have  been  specifically  devised, 
the  devisee  shall  be  entitled  to  contribution  from  other 
devisees,  according  to  the  principles  of  equity  in  respect 
to  contribution  among  legatees.  And  the  children  and 
issue  provided  for  in  this  chapter,  shall  be  regarded  as 
specific  devisees  in  such  contribution. 

Sec.  1536.  Of  what  lands  an  after-born  child's  share  to  be 
allotted.    1868-'9.  c.  113,  s.  108. 

The  share  of  an  after-born  child  in  real  estate  shall  be 
allotted  to  him  out  of  any  lands  not  devised,  if  there  be 
enough  for  that  purpose;  and  if  there  be  none  undevised, 
or  not  enough,  then  the  whole  share,  or  the  deficiency, 
as  the  case  maybe,  shall  be  made  up  of  the  lands  devised; 
and  so  much  thereof  shall  be  taken  from  the  several 
devisees  according  to  their  respective  values,  as  near  as 
may  be  convenient,  as  will  make  the  proper  share  of  such 
child. 

Johnson  v.  Chapman,  Busb.  Eq.,  213;  Johnson  v.  Chapman,  1  Jon. 
Eq.,  130. 

Sec.  1537.  Of  what  personalty  such  child's  share  to  be  al- 
lotted.   1868-'9,  c.  113,  s.  109. 

The  share  of  an  after-born  child  in  the  personal  estate 
shall  be  paid  and  delivered  to  him  out  of  any  such  estate 
not  bequeathed,  if  there  be  enough  for  that  purpose;  and 
if  there  be  none  undisposed  of,  or  not  enough,  then  the 
whole  share,  or  the  deficiency,  as  the  case  may  be,  shall 
be  made  up  from  the  estate  bequeathed;  and  so  much 
shall  be  taken  from  the  several  legacies,  according  to 
their  respective  values,  as  will  make  the  proper  share  of 
such  child. 

Johnson  V.  Chapman,  Busb.  Eq.,  218;  Johnson  v.  Chapman,  1  Jon.  Eq., 
130. 

Sec.  1538.  Intestate  estate  to  be  applied  in  exoneration 
of  estate  devised  or  bequeathed.  1868-'9,  c.  113,  s. 
110. 

If,  after  satisfaction  of  the  child's  share  of  real  estate 
out  of  undevised  lands,  there  be  a  surplus  of  such  lands, 
and  there  be  no  personal  estate  undisposed  of.  or  not 
enough  to  make  up  his  share  of  such  estate,  then  the 
surplus  of  undevised  laud,  or  as  much  as  may  be  neces- 
sary, shall  be  sold  and  the  proceeds  appUed  to  making 
up  his  share  of  personal  estate.  And  if,  after  satisfac- 
tion of  the  child's  share  of  personal  estate  out  of  prop- 


598  EXECUTORS,  ETC.  [Chap.  33. 

erty  undisposed  of  by  the  will,  there  be  a  surplus  of  such 
property,  then  the  surplus  thereof  shall  be  applied,  as  far 
as  it  will  go,  in  exoneration  of  land,  both  devised  and  de- 
scended; and  the  same  shall  be  set  apart  and  secured  as 
real  estate  to  such  child,  if  an  infant,  non  compos  ot  feme 
covert. 

Sec.  1539.  Decree  of  contribution.    1868-'9,  c.  113,  s. 
111. 

Upon  the  allotment  to  such  child  of  any  real  estate  in 
the  manner  aforesaid,  he  shall  thenceforth  be  seized  tlaere- 
of  in  fee  simple;  and  the  court  shall  give  judgment  sev- 
erally, in  favor  of  such  of  the  devisees  and  legatees,  of 
whose  lands  and  legacies  more  has  been  taken  away  than 
in  proportion  to  the  respective  values  of  said  lands  and 
legacies,  against  such  of  said  devisees  and  legatees,  of 
whose  lands  and  legacies  a  just  proportion  has  not  been 
taken  away,  for  such  sums  as  will  make  the  contribution 
on  the  part  of  each  and  every  of  them  equitable,  and  in 
the  ratio  of  the  values  of  the  several  devises  and  lega- 
cies. 

Sec.  1540.    After-born  child,  when  deemed  devisee  and 
legatee.    1868-'9,  c.  113,  s.  112. 

An  after-born  child  after  such  decrees  shall  be  consid- 
ered and  deemed  in  law  a  legatee  and  devisee  as  to  his 
portion,  shall  be  styled  as  such  in  all  legal  proceedings, 
and  shall  be  liable  to  all  the  obligations  and  duties  by  law 
imposed  on  such:  Provided,  that  all  judgments  or  de- 
crees, bona  fide,  obtained  against  the  devisees  and  lega- 
tees previously  to  the  preferring  of  any  petition,  and 
which  were  binding  upon  or  ought  to  operate  upon,  the 
lands  and  chattels  devised  or  bequeathed,  shall  be  car- 
ried into  execution  and  effect  notwithstanding,  and  the 
petitioner  shall  take  his  portion  completely  subject  there- 
to: Provided  further,  that  any  suit  instituted  against 
the  devisees  and  legatees  previously  to  such  petition  shall 
not  be  abated  or  abateable  thereby,  nor  by  the  decree 
thereon,  but  shall  go  on  as  instituted,  and  the  judgment 
and  decree,  unless  obtained  by  collusion,  be  carried  into 
execution;  but  on  the  filing  of  the  petition,  during  the 
pendency  of  such  suit,  the  petitioner,  by  guardian,  if  an 
infant,  may  become  a  defendant  in  the  suit. 

Sec.  1541.  How  executor  to  proceed  if  no  petition  be  filed. 
1868-'9,  c.  113,  s.  11.3. 

In  case  no  petition  shall  be  filed  within  tAvo  years,  as 


Chap.  33.]  EXECUTOES,  ETC.  599 

herein  prescribed,  the  executor  or  administrator  with  the 
will  annexed,  before  he  shall  pay  or  dehver  the  legacies 
in  the  will  given,  or  before  paying  to  the  next  of  kin  of 
the  testator  any  residue  undisposed  of  by  the  will,  shall 
call  upon  the  legatees,  devisees,  heirs  and  next  of  kin, 
and  the  said  after-born  child,  by  petition  in  the  superior 
court,  to  litigate  their  respective  claims,  and  shall  pray 
the  court  to  ascertain  the  share  to  which  said  child  shall 
be  entitled,  and  to  apportion  the  shares  and  sums  to  which 
the  legatees,  devisees,  heirs  or  next  of  kin  shall  severally 
contribute  toward  the  share  to  be  allotted  to  said  child, 
and  the  court  shall  adjudge  and  decree  accordingly. 

Johnson  v.  Cbapman,  Busb.  Eq.,  213;  Johnson  v.  Chapman,  1  Jon.  Eq., 
130;  Keslerv.  Smith,  66—154. 

Sec.  1542.  Cases  of  sale  of  real  estate,  &c.;  final  orders 
not  made  before  the  present  constitution  may  be  trans- 
ferred to  superior  court.    187 1-'2,  c.  161. 

All  cases  for  the  sale  of  real  estate  for  assets  heretofore 
in  the  county  courts,  in  which  final  orders  for  collection 
and  apphcation  or  distribution  of  purchase  money  and 
making  titles  were  not  made  before  the  adoption  of  the 
pi-esent  constitution,  may,  at  the  instance  of  any  person 
interested,  be  transferred,  as  other  cases,  to  the  superior 
court  of  the  county  where  such  proceeding  was  pending, 
and  such  court  shall  have  full  authority  to  make  all 
necessary  orders  to  complete  the  same. 

Sec.  1543.  Executor  or  administrator  authorized,  after 
twelve  months  from  qualification,  to  pay  into  clerk's 
office  moneys  belonging  to  legatees  or  distributees  of 
estate.     1881,  c.  305,  s.  1. 

It  shall  be  competent  for  any  executor,  administrator 
or  collector,  at  any  time  after  twelve  months  from  the 
date  of  letters  testamentary  or  of  administration,  to  pay 
into  the  office  of  clerk  of  the  superior  court  of  the  county 
where  such  letters  were  granted,  any  moneys  belonging 
to  the  legatees  or  distributees  of  the  estate  of  his  testator 
or  intestate,  and  such  payment  shall  have  the  effect  to 
discharge  such  executor,  administrator  or  collector  and 
his  sureties  on  his  official  bond  to  the  extent  of  the 
amount  so  paid. 

Sec.  1544.  Clerk  to  receive  moneys  and  give  receipt. 
1881,  c.  305,  s.  3. 

It  shall  be  the  duty  of  the  clerk,  in  the  cases  provided 
for  in  the  preceding  section,  to  i-eceive  such  money  from 


600 


FRAUDULENT  CONVEYANCES.    [Chap.  34. 


any  executor,  administrator  or  collector,  and  to  execute 
a  receipt  for  the  same  under  the  seal  of  his  office. 


CHAPTEE  THIRTY-FOUR. 


FEAUDS  AND  FEAUDULENT  CONVEYANCES. 


Section. 

1545.  Conveyances  of  lands  or  goods 
made  to  defraud  creditors, 
void. 

1546.  Conveyances  of  lands,  &c.,  to 
defraud  purchasers,  void. 

1547.  Voluntary  conveyances  not 
deemed  fraudulent  as  to  cred- 
itors, merely  because  of  in- 
debtedness of  donors;  indebt- 
edness evidence  only  of  fraud 
to  be  left  to  jury. 

1548.  Bona  fide  conveyances  upon 
good  consideration,  valid. 

1549.  Bona  fide  purchases  without 
notice,  undi-r  deeds  made  on 
illegal  consideration,  valid. 

1550    Purchasers  of  estates  fraudu- 


Sf.ction. 

lenily   conveyed   to  have  re- 
lief. ' 

l.'i.'jl.  Persons  removing  debtors  to 
hinder,  del;iy  or  defraud  cred- 
itor.?, liable  for  Iheir  debts. 

I.552,  Contracts  charging  executors, 
&c.,  personally,  or  any  person 
with  the  debt,  &c.,  of  another 
to  be  in  writing. 

1553.  Contracts  veith  Cherokee  In- 
dians to  be  in  writing,  sub- 
scribed by  two  witnesses. 

ir)54.  Contracts  for  the  sale  of  land 
void  unless  in  writing. 

1555.  Ordinary  keeper  or  retailer 
not  to  credit  for  liquors  over 
ten  dollars. 


Sec.  1545.  Conveyances  of  lands  or  goods  made  to  de- 
fraud creditors  void.  R.  C.  c.  50,  s.  1.  50Edw.  HI, 
c.  6.     13  Eliz.,  c.  5,  s.  2.    1715,  c.  7,  s.  4. 

For  avoiding  and  abolishing  feigned,  covinous  and 
fraudulent  gifts,  grants,  alienations,  conveyances,  bonds, 
suits,  judgments  and  executions,  as  vsrell  of  lauds  and 
tenements  as  of  goods  and  chattels,  vphich  may  be  con- 
trived and  devised  of  fraud,  to  the  purpose  and  intent  to 
delay,  hinder  and  defraud  creditors  and  oi.hers  of  their 
just  and  lawful  actions  and  debts,  every  gift,  grant, 
alienation,  bargain  and  conveyance  of  lands,  tenements 
and  hereditaments,  goods  and  chattels,  by  writing  or 
otherwise,  and  every  bond,  suit,  judgment  and  execution, 
at  any  time  had  or  made,  to  or  for  any  intent  or  purpose 
last  before  declared  and  expressed,  shall  be  deemed  and 
taken  (only  as  against  that  person,  his  heirs,  executors, 


Chap.  34.]    FRAUDULENT  CONVEYANCES.         601 

administrators  and  assigns,  whose  actions,  debts,  ac- 
counts, damages,  penalties  and  forfeitures,  by  such 
covinous  or  fraudulent  devices  and  practices  aforesaid, 
are,  shall,  or  might  be  in  anywise  disturbed,  hmdered, 
delayed  or  defrauded,)  to  be  utterly  void  and  of  no 
effect;  any  pretence,  color,  feigned  consideration,  ex- 
pressing of  use,  or  any  other  matter  or  thing  to  the  con- 
trary notwithstanding. 

Sherman  V.  Russell,  1  Car.  L.  Rep.,  467;  Blount  v.  Blount,  2  Car.  L. 
Rep.,  587;  Hoke  v.  Henderson,  3  Dev.,  12;  Leadman  v.  Harris,  3  Dev., 
144;  O'Daniel  v.  Crawford,  4  Dev.,  197;  Purcell  v.  McCallum,  1  D.  &  B., 
221;  Jones  V.  Young,  1  D.  &  B.,  352;  Shoberv.  Hauser,  4  D.  &  B.,  91; 
Newitom  v.  Roles,  1  Ired.,  179;  Hafner  v.  Irwin,  1  Ired.,  490;  Cowing  v. 
Rich,  llred.,  553;  Worth  v.  Nortlium,  4  Ired.,  102;  Hafner  v.  Irwin,  4 
Ired.,  529;  Mebane  v,  Mebane,  4  Ired.  Eq.,  131;  Hawkins  v.  Alston,  4 
Ired.  Eq.,  137;  Ricli  v.  Marsh,  4  Ired.  Eq.,  396;  Markham  v.  Shannon- 
house,  4  Ired.  Eq.,  411;  Springs  v.  Hanks,  5  Ired.,  30;  Buie  v.  Kelly,  S 
Ired.,  169;  Thomas  v.  Orrell,  5  Ired.,  569;  Toole  v.  Darden,  6  Ired.  Eq., 
394;  Jones  V.  Gorman,  7  Ired.  Eq. ,  21;  Flynn  v.  Williams,  7  Ired.,  33; 
Smith  V.  Reavis,  7  Ired.,  341;  Lee  v.  Flannagan,  7  Ired.,  471;  .Tackson  v. 
Hampton,  8  Ired.,  457;  Hardy  v.  Skinner,  9  Ired.,  191;  Sturdivant  v.  Davis, 
9  Ired.,  365;  Brannock  v.  Brannock,  10  Ired.,  4C8;  Harris  v.  DeGraffen- 
reid,  Hired.,  89;  Foster  v.  Woodfin,  11  Led.,  339;  Young  v.  Booe,  11 
Ired.,  347;  Rhem  v.  TuU,  13  Ired.,  57;  Hardy  v.  Simpson,  13  Ired.,  132; 
Satterwhite  v.  Hicks,  Busb.,  105;  Bridges  v.  Moye,  Busb.  Eq.,  170;  Brit- 
tain  V.  Quiet,  1  Jon.  Eq.,  328;  Jenkins  v.  Peace,  1  Jon.,  413;  Gilmer  v. 
Earnhardt,  1  Jon.,  559;  McGill  v.  Harman,  2  Jon.  Eq.,  179;  McCorkle  v. 
Hammond,  2  Jon.,  444;  Grimsleyv.  Hooker,  3  Jon.  Eq.,  4;  Garrison  v. 
Brice,  3  Jon.,  85;  Jessup  v.  Johnston,  3  Jon.,  335;  Potts  v.  Blackwell,  3 
Jon.  Eq.,  449;  Potts  v.  Blackwell,  4  Jon.  Eq.,  58;  Green  v.  Kornegay,  4 
Jon.  Eq.,  66;  Black  v.  Caldwell,  4  Jon.,  150;  Felton  v.  White,  4  Jon  ,  301; 
Palmer  V.  Giles,  5  Jon,  Eq.,  75;  Newlin  v.  Osborne,  6  Jon.,  128:  Stone  v. 
Marshall,  7  Jon.,  300;  London  v.  Parsley,  7  Jon.,  313;  Bank  of  Fayelte- 
yillev.  Spurling,  7  Jon.,  398;  Winchester  v.  Reid,  8  Jon.,  377;  Powell  v 
Inman,  8  Jon.,  436;  Johnson  v.  Murchison,  1  Winst.,  292;  Rose  v.  Coble, 
Phil.,  517;  Devries  V.  Phillips,  63—53;  Powell  v.  Howell,  63—283;  Carr 
V.  Fearinglon,  C3— 560;  Salms  v.  Martin,  63—608;  Houston  v.  Potts,  64— 
38-  Carter  V.  Cocke,  64— 239;  Lassiter  v.  Davis,  64 — 498;  Hogan  v.  Stray- 
horn,  65—279;  McNeill  v.  Riddle,  66—290;  Isler  v.  Foy,  66—547;  Young 
V.  Lathrop,  67—63;  Reiger  v.  Davis,  67—185;  Humphrey  v.  Wade,  70— 
280;  N.  C.  Endowment  Fund  v.  Satchwell,  71—111;  McCanless  v.  Rey- 
nolds, 74—301;  Sharpe  V.  Williams,  76—87;  Cheatham  v.  Hawkins,  76— 
335;  Cansler  V.  Cobb,  77—30;  Holmes  v.  Marshall,  78—262;  Morris  v. 
Pearson,  79 — 253;  (overrules  7  Jon.,  300,  above  cited);  Cheatham  v.  Haw- 
kins, 80-161;  York  v.  Merritt,  80—285;  Hilliard  t.  Phillips,  81—99; 
Sutherland  v.  Harper,  83—200;  Boone  v.  Hardie,  83 — 470;  Rollins  v.  Hen- 
ry, 84 569;  Buxton  v.  Farmhalt,    86—260;  Rencher    v.  Wynne,    86—268; 

Bynum  v.  Miller,  86—559. 
26 


602         FEAUDULENT  CONVEYANCES.     [Chap.  3i. 

Sec.  1546.  Conveyances  of  lands,  &c.,  to  defraud  purchas- 
ers, void.  R.  C,  c.  50,  s.  2.  27  Eliz.,  c.  4,  s.  2.  1840, 
c.  28,  ss.  1,2. 

Every  conveyance,  charge,  lease  or  incumbrance  of  any 
lands  or  hereditaments,  goods  and  chattels,  if  the  same 
be  made  with  the  actual  intent  in  fact  to  defraud  such 
person  as  hath  purchased  or  shall  purchase  in  fee  simple 
or  for  lives  or  years  the  same  lands  or  hereditaments, 
goods  and  chattels,  or  to  defraud  such  as  shall  purchase 
any  lent  or  profit  out  of  the  same,  shall  be  deemed  utterly 
void  against  such  person  and  others  claiming  under  him 
who  shall  purchase  for  the  full  value  thereof  the  same 
lands  or  hereditaments,  goods  and  chattels,  or  rents  or 
profits  out  of  the  same,  without  notice  before  and  at  the 
time  of  his  purchase  of  the  conveyance,  charge,  lease  or 
incumbrance,  by  him  alleged  to  have  been  made  with 
intent  to  defraud;  and  possession  taken  or  held  by  or  for 
the  person  claiming  under  such  alleged  fraudulent  con- 
veyance, charge,  lease  or  incumbrance  shall  be  always 
deemed  and  taken  as  notice  in  law  of  the  same. 

Ingles  V.  Donaldson,  2  Hay.,  57;  Bell  v.  Blaney,  2Mur.,  171;  McCree 
V.  Houston,  3  Mur.,  439;  FuUenwider  v.  Roberts,  4  D.  «feB.,  278;  Hiatt 
V.  Wade,  8  Ired.,  340;  Ganison  v.  Brice,  3  Jon.,  85;  Long  v.  Wright,  3 
Jon.,  290;  Barwick  v.  Wood,  3  Jon.,  306;  Potts  v.  Blaekwell,  3  Jon.  Eq., 
449;  Green  v.  Kornegay,  4  Jon.,  66;  Potts  v.  Blackwell,  4  Jon.  Eq.,  58; 
Jones  V.  Hall,  5  Jon.  Eq.,  26;  Dukes  v.  Jones,  6  Jon.,  14;  Salms  v.  Martin, 
63—608;  Young  v.  Latbrop,  67—63;  Triplett  v.  Witherspoon,  70—589; 
Ward  V.  Wooten,  75—413,  GuUey  v.  Macy,  84 — 434;  Southerland  v.  Harper, 
83—200;  Bynum  v.  Miller,  86—559;  Best  v.  Setzer,  87—187. 


Sec.  1647.  Voluntary  conveyances  not  deemed  fraudu- 
lent as  to  creditors,  merely  because  of  indebtedness  of 
donors;  indebtedness  evidence  only  of  fraud  to  be  left 
to  tbe  jury.    B.  C,  c.  50,  s.  3.    1840,  c.  28,  ss.  3,  4. 

No  voluntary  gift  or  settlement  of  property  by  one 
indebted  shall  he  deemed  or  taken  to  be  void  in  law,  as  to 
creditors  of  the  donor  or  settler  prior  to  such  gift  or 
settlement,  by  reason  merely  of  such  indebtedness,  if 
property,  at  the  time  of  making  such  gift  or  settlement, 
fully  sufficient  and  available  for  the  satisfaction  of  his 
then  creditors,  be  retained  by  such  donor  or  settler;  but 
the  indebtedness  of  the  donor  or  settler  at  such  time  shall 
be  held  and  taken,  as  well  with  respect  to  creditors  prior 
as  creditors  subsequent  to  such  gift  or  settlement,  to  be 
evidence  only  from  which  an  intent  to  delay,  hinder  or 
defraud  creditors  may  be  inferred;  and  in  any  trial  at 


Chap.  U.]    FRAUDULENT  CONVEYANCES.  603 

law,  shall,  as  such,  be  submitted  by  the  court  to  the  jury, 
with  such  observations  as  may  be  right  aud  proper. 

Plouston  V.  Bogle,  10  Ircd.,  496;  Thacker  v.  Saunders,  Busb.  Eq.,  145; 
Black  V.  Sanders,  1  Jon.,  67;  Creedle  v.  Carrawan,  64 — 423;  PuUen  v. 
Hutchins,  67—428. 

Sec.  1548.  Bona  fide  conveyances  upon  good  considera- 
tion valid.    K.  C,  c.  60,s.  4.     13  Eliz.,  c.  5,  s.  6.    1715, 

c.  7,  s.  6. 
Nothing  contained  in  the  preceding  sections  shall  be 
construed  to  impeach  or  make  void  any  conveyance,  in- 
terest, limitation  of  use  or  uses,  of  or  in  any  "lands  or 
tenements,  goods  or  chattels,  bona  fide  made,  upon  and 
for  good  consideration,  to  any  person  not  having  notice 
of  such  fraud. 

Wall  V.  White,  3  Dev.,  105;  Martin  v.  Cowles,  1  D.  &  B.,  29;  Dobson  v. 
Brwin,  4  D.  &  B.,  201;  Latra  v.  Morrison,  1  Ired.,  149;  Freeman  v.  Lewis, 
5  Ired.,  91;  Hiatt  v.  Wade,  8  Ired.,  340;  Wade  v.  Iliatt,  10  Ired.,  SOs'; 
Harris  v.  DeGraffenreid,  11  Ired.,  89;  White  v.  White,  13  Ired.,  265;  Uzzle 
V.  Wood,  1  Jon.  Eq.,  226;  Polls  v.  Blackwell,  3  Jon.  Eq.,  449;  Young  v. 
Lathrop,  67—63;  Reiger  v.  Davis,  67—185;  Glenn  v.  Bank,  70 — 191;  Trip- 
lett  V.  Witherspoon,  70—589;  London  v.  Headeii,  76—72;  Worthy  v.  Cad- 
dell,  76—83;  Sharpe  v.  Williams,  76—87;  Cansler  v.  Cobb,  77—80. 

Sec.  1549.  Bona  fide  purchasers  without  notice,  under 
deeds  made  on  illegal  consideration,  valid.  K.  C,  c 
60,  s.  5.    1840,  c.  70. 

No  conveyance  or  mortgage,  made  to  secure  the  pay- 
ment of  any  debt  or  the  performance  of  any  contract  or 
agreement,  shall  be  deemed  void  as  against  any  pur- 
chaser for  valuable  or  other  good  consideration  of  the 
estate  or  property  conveyed,  sold,  mortgaged  or  assigned, 
by  reason  that  the  consideration  of  such  debt,  contract 
or  agreement  shall  be  forbidden  by  law,  if  such  pur- 
chaser, at  the  time  of  his  pm-chase,  shall  not  have  had 
notice  of  the  imlawful  consideration  of  such  debt,  con- 
tract or  agreement. 

Hiatt  V.  Wade,  8  Ired.,  340;  McCorkle  v.  Earnhardt,  Phil.,  300;  Coor  v. 
Spicer,  65—401;  McNeill  v.  Riddle,  66—290;  Triplett  v.  Witherspoon 
70—589. 

Sec.  1550.  Purchasers  of  estates  fraudulently  conveyed  to 
have  relief.    K.  C,  c.  50,  s.  6. 

Purchasers  of  estates  previously  conveyed  in  fraud  of 
creditors  or  purchasers  shall  have  like  remedy  and  relief 
as  creditors  might  have  had  before  the  sale  and  pur- 
chase. 

Morrison  v.  McNeill,  6  Joa.,  450;  Morrison  v.  McNeill,  8  Jon.,  45 


604         FRAUDULENT  CONVEYANCES.     [Chap.  34. 

Sec.  1651.  Persons  removing' debtors  to  hinder,  delay  or 
defraud  creditors,  liable  for  their  debts.  R.  C,  c.  60 
s.  14.     1820,  c.  1063. 

If  any  person  shall  remove  oi  shall  aid  and  assist  in 
removing  any  debtor  out  of  any  county  in  which  he 
shall  have  resided  foi-  the  space  of  six  months  or  more, 
with  the  intent,  by  such  removing,  aiding  or  assisting  to 
delay,  hinder  or  defiaud  the  creditors  or  any  of  them  of 
such  debtor,  the  person  so  removing,  aiding  or  assisting 
therein,  and  his-  executors  or  administrators,  shall  be 
hable  to  pay  all  the  debts  which  the  debtor  removed 
may  justly  owe  in  the  county  from  which  he  was  so  re- 
moved; and  the  same  may  be  recovered  by  the  credit- 
oi-s,  their  executors  or  administrators  by  a  civil  action. 

Gardiner  v.  Sherrod,  2  Hawks,  173;  Barker  v.  Munroe,  4  Dev.,  413; 
Erwin  v.  Greenlee,  1  D.  &  B.,  39;  Godsey  v.  Baspn,  8  Ired.,  260;  March  v. 
Wilson,  Busb.,  143;  Booe  v.  Wilson,  1  Jon.,  182;  Wiley  v.  McRee,  3  Jon., 
349;  Moore  v.  Rogers,  3  Jon.,  90;  Moss  v.  Peoples,  6  .Jon.,  140;  Moore  v. 
Rogers,  6  Jon.,  297;  MofflttT.  Burgess,  8  Jon.,  342;  Baker  v.  Harris,  1 
Winst.,  277. 

Sec.  1552.  Contracts  charging  executors,  &c.,  personally, 
or  any  person  with  the  debt,  &c.,  of  another,  to  be  in 
writing.    B.  C,  c.  50,  s.  15.     1826,0.10. 

No  action  shall  be  brought  whereby  to  charge  an  ex- 
ecutor or  administrator  upon  a  special  promise  to  answer 
damages  out  of  his  own  estate  or  to  charge  any  defend- 
ant upon  a  special  promise  to  answer  the  debt,  default  or 
miscarriage  of  another  person,  unless  the  agreement 
upon  which  such  action  shall  be  brought,  or  some  mem- 
orandum or  note  thereof,  shall  be  in  writing,  and  signed 
by  the  party  charged  therewith  or  some  other  person 
thereunto  by  him  lawfully  authorized. 

Sleighter  v.  Harrington,  2  Mur.,  332;  Mosby  v.  Chafl3n,  3  Dev.,  333; 
Cooper  V.  Chambers,  4  Dev.,  261;  Miller  v.  Irvine,  1  D.  &  B.,  103;  Adcock 
V.  Fleming,  2  D.  <&B.,  225;  Hall  v.  Robinson,  8  Ired.,  56;  Draughan  v.  Bunt- 
ing, 9  Ired.,  10;  Hill  v.  Douglily,  11  Ired.,  195;  Rice  v.  Carter.  11  Ired., 
298;  Stanly  V.  Hendricks,  13  Ired.,  86;  Waldo  v.  Jolly,  4.Jon.,  174;  Smith- 
wick  v.  Shepherd,  4  Jon.,  196;  Rowland  v.  O'Horke,  4  Jon.,  337;  Hocka- 
day  V.  Parker,  8  Jon.,  16;  Hicks  v.  Critcher,  Phil.,  353;  Combs  v.  Harshaw, 
63—198;  Norton  v.  Edwards,  66—367;  Thrcadgill  v.  McLendon,  76—24; 
Pickey  v.  Merrimon,  79—585;  Mon-ison  v.  Baker,  81 — 76;  Rowland  v. 
Bares,  81—234;  Mason  v.  Wilson,  84—51. 

Sec.  1553.  Contracts  with  Cherokee  Indians  to  be  in  writ- 
ing, subscribed  by  two  witnesses.    R.  C,  c.  50,  s.  16. 

All  contracts  and  agreements  of  every  description  made 
after  the  eighteenth  day  of  May,  one  thousand  eight  hun- 


Chap.  34.]    FRAUDULENT  CONVEYANCES.         605 

dred  and  thirty  eight,  with  any  Cherokee  Indian,  or  any 
person  of  Cherokee  Indian  blood  within  the  second  de- 
gree, for  an  amount  equal  to  ten  dollars  or  more,  shall  be 
void,  unless  some  note  or  memorandum  thereof  be  made 
in  writing  and  signed  by  such  Indian  or  person  of  Indian 
blood,  or  some  other  person  by  him  authorized,  in  the 
presence  of  two  witnesses,  who  shall  also  subscribe  the 
same. 

Lovingood  v.  Smith,  7  Jon.,  601;  State  v.  Ta-cba-na-tab,  64—614;  Rollins 
V.  Cherokees,  87—329. 


Sec.  1554.  Contracts  for  the  sale  of  land  void  unless  in 
writing.  R.  C,  c.  50,  s.  11;  29  Ch.  II,  c.  3,  s.  2.  1819, 
c.  1016.    1844,  c.  44.    1868-'9,  c.  156,  s.  33. 

All  contracts  to  sell  or  convey  any  lands,  tenements  or 
hereditaments  or  any  interest  in  or  concerning  them  shall 
be  void  and  of  no  effect,  unless  such  contract  or  some 
memorandum  or  note  thereof  shall  be  put  in  wi-iting  and 
signed  by  the  party  to  be  charged  therewith  or  by  some 
other  person  by  him  thereto  lawfully  authorized. 

Graves  v.  Carter,  3  Hawks,  576 ;  Smith  v.  Executor  of  Amis,  3  Hawks, 
469:  Ellis  v.  Ellis,  1  Dev.  Eq.,  180;  Ellis  v.  Ellis,  1  Dev.  Eq.,  341;  Choat 
V.  Wright,  2  Dev.,  289;  Anders  v.  Anders,  3  Dev.,  529;  Tate  v.  Greenlee,  4 
Dev.,  149;  Miller  v.  Irvine,  1  D.  &  B.,  103;  Oliver  v.  Dix,  1  D.  &  B  Eq,, 
158;  Baker  v.  Carson,  1  D.  &  B.  Eq..  881;  Neely  v.  Torian,  1  D.  &  B.,  410; 
Trice  V.  Pratt,  1  D.  &  B.  Eq.,  636;  Albea  v.  Griffin,  3  D.  &  B.  Eq.,  9;  Tur- 
ner V.  King,  3  Ired.  Eq.,  132;  Allen  v.  Chambers,  4  Ired.  Eq.,  125;  Vannoy 
V.  Martin,  6  Ired.  Eq.,  169;  Reed  v.  Cox,  6  Ired.  Eq  ,  511;  Ingram  v. 
Dowdle,  8  Ired.,  455;  Rice  v.  Carter,  11  Ired.,  298;  Osborne  v.  Horuer,  11 
Ired.,  359;  Simmsv.  Killian,  12  Ired.,  2:!3;  Ledfovd  v.  Ferrell's  Adm'r,  12 
Ired.,  285;  Clement  v.  Clement,  1  Jon.  Eq.,  184;  Briggs  v.  Morris,  1  Jon. 
Eq.,  193;  Barnes  v.  Teague,  1  Jon.  Eq..  277;  Love  v.  Neilson,  1  Jon.  Eq., 
339;  Lea  v.  McKenzie,  3  Jon.  Eq.,  232;  Gwynn  v.  Selzer,  3  Jon.,  382; 
Johnson  v.  Sikes,  4  Jon.,  70;  Mizell  v.  Burnett,  4  Jon.,  249;  Capps  v.  Holt. 
5  Jon.  Eq.,  153;  Blackuall  v.  Parish,  6  Jon.  Eq.,  70;  Riggs  v.  Swann,  6 
Jon.,  118;  Richardson  v.  Thornton,  7  Jon.,  458;  Edwards  v.  Kelly,  8  Jon., 
69;  Smith  v.  Smith,  2  Winst.,  30;  Cherry  v.  Long,  Phil.,  466;  Brown  v. 
Com'rs,  63—514;  Ferguson  v.  Haas,  64r— 773;  Pope  v.  Whitehead,  68—191; 
Farmer  v.  Willard,  71—284;  Barnes  v.  Brown,  71—507;  Faw  v.  Whilting- 
ton,  73 — 321;  Gwathney,  v.  Carson,  74 — 5;  Wetberel  v.  Gorman.  74 — 
603;  Medlin  v.  Steele,  75—154;  Daniel  v.  Crumpler.  75—184;  Hinsdale  v. 
Thornton,  75—381;  Mayer  v.  Adrian,  77—83;  Green  v.  R.  R.  Co.,  77—95; 
Wade  v.  New  Berne,  77—460;  McKee  v.  Vail,  79—194;  Bonham  v.  Craig, 
80—234;  Morrison  v.  Baker,  81—76;  Young  v.  Young,  81—91;  Brown  v. 
Morris,  83—351;  Winberry  v.  Koonce,  83—351;  Davis  v.  Inscoe,  84—396; 
Gulley  V.  Macy,  84—434;  Young  v.  Griffith,  84r-715. 


606 


GUARDIAN  AND  WAED.       [Chap.  35. 


Sec.  1555.  Ordinary  keeper  or  retailer  not  to  credit  for 
liquors  over  ten  dollars.  K.  C,  c.  79,  s.  4.  1798,  c. 
501,  s.  6. 

No  keeper  of  an  inn,  tavern  or  ordinary,  or  retailer  of 
liquors  by  the  small  measure  shall  sell  to  any  person,  on 
credit,  liquors  to  a  greater  amount  than  ten  dollars,  un- 
less the  person  credited  sign  a  book  or  note,  in  the  pres- 
ence of  a  witness,  in  acknowledgment  of  the  debt,  under 
the  penalty  of  losing  the  money  so  credited;  and  in  any 
action  brought  for  recovery  of  such  debt  the  matter  of 
defence  allowed  by  this  section  may  be  set  up  in  the  an- 
swer and  given  in  evidence. 

Kizerv.  Kandleman,  5  Jon.,  428. 


CHAPTER  THIRTY-FIVE. 


GUAEDIAN  AND  WARD. 


Sbction. 

1556.  Public  guardian  may  be  ap- 
pointed in  every  county. 

1557.  Bond  of  public  guaidian. 
1658.  Bond  to  be  enlarged. 

1559.  Bond  to  be  renewed  every  two 
years. 

1560.  Oath  to  be  taken  and  sub- 
scribed. 

1561.  Public  guardian  to  apply  for 
letters;  when  letters  to  be  re- 
voked on  application ;  powers 
and  duties  of  public  guar- 
dian. 

1562.  Father  may  appoint  guardian 
by  deed  or  will,  or  if  father  be 
dead,  mother  may  appoint. 

15C3.  Effect  of  such  appointment. 

1564.  Powers  and  liabilities  of  guar- 
dians by  deed  or  will. 

1565.  Mother  to  be  natural  guar- 
dian of  child,  if  father  dead. 

1566.  Jurisdiction  of  clerks  of  supe- 
rior court. 


Section. 

1567.  May  appoint  tutor  of  person 
and  guardian  of  estate. 

1568.  May  allow  yearly  sums  for  sup- 
port and  education. 

1569.  What  disbursements  and  com- 
missions allowed. 

1570.  In  cases  of  divorce  who  to  have 
custody  of  children. 

1571.  In  cases  of  divorce  how  guar- 
dian of  estate  appointed. 

1573.  Guardian  of  estate  when  father 
is  alive. 

1573.  Guardian  not  to  receive  prop- 
erty until  security  given. 

1574.  Bond  to  be  given  by  guardian 
to  be  increased  on  sale  of  prop- 
erty. 

1575.  Action  on  bond. 

1576.  When  wards  have  property  ic 
common,  one  bond. 

1577.  Return  within  three  months. 

1578.  Compelling  return. 


Chap.  35.]       GUAEDIAN  AND  WAED. 


6or 


1607. 


1608. 
1609. 


Section, 

1579.  Return  to  be  made  of  new  te- 
sets. 

1580.  Annual  account. 

1581.  Bond  to  be  renewed. 
1583.  Guardian     failing    to    renew 

bond,  duty  of  clerls. 

1583.  Power  and  duty  of  clerks  over 
guardians  abusing  their  trusts. 

1584.  Action  to  be  brought  by  solici- 
tor, when. 

1585.  Receiver  to  be  appointed, 
when. 

1586.  Compensation  of  solicitor. 

1587.  Property,  how  obtained  from 
receiver  when  guardian  ap- 
pointed. 

1588.  Guardian  to  take  charge  of 
ward's  estate. 

1589.  Guardian  to  sell  goods  and 
chattels  of  ward  liable  to  per- 
ish, &c. 

1590.  Sales  and  rentings,  how  made. 

1591.  Guardian  may  lease  lands, 
when. 

1593.  Notes  taken  by  guardian  to 
bear  compound  interest. 

1593.  Liability  of  guardian  for  debts. 

1594.  How  guardian  may  invest. 

1595.  Guardian  liable  for  lands  for- 
feited for  taxes. 

1596.  When  guardian  may  sell  tim- 
ber. 

1597.  Plate  to  be  kept. 

1598.  Foreign  guardian  may  have 
ward's  estate  removed,  how. 

1599.  "What  petition  must  show. 

1600.  Who  may  be  made  defendants. 

1601.  Petition  to  be  proceeded  with 
as  in  other  cases  of  special 
proceedings. 

1603.  Estates  of  ward,  how  and  when 
sold. 

Sec.  1566.  Public  guardian  may  be  appointed  in  every 
county.    1874-'5,  c.  221,  s.  1. 

There  may  be  in  every  county  in  the  state  a  public 
guardian  to  be  appointed  by  the  clerk  of  the  superior 
court  for  a  term  of  eight  years. 


Section. 

1603.  Property  substituted  for  that 
sold  to  remain  of  the  same 
character  as  that  sold. 

1604.  When  ward  is  indebted,  how 
property  sold. 

1605.  Proceeds  to  be  assets  in  guar- 
dian's hands  for  payment  of 
creditors. 

1606.  Sureties  of  guardian  in  danger 
of  loss,  how  relieved. 
Interlocutory    order    pending 
controversy. 

Guardian  may  resign,  when. 
Duty  of  grand  jury  regarding 
orphans  without  guardians. 

1610.  Estates  of  orphans  without 
guardians,  how  secured. 

1611.  Fees  and  costs  in  certain  cases, 
by  whom  paid. 

1613.  Guardian  allowed  disburse- 
ments and  expenses. 

1613.  Commissions  allowed. 

1614.  Liability  of  clerk  taking  insuf- 
ficient security. 

1615.  Liability  of  clerk  for  other  de- 
faults. 

1616.  Guardians  heretofore  appoint- 
ed. 

1617.  Annua]  accounts. 

1618.  Failing  to  account,  clerk  to 
order  an  account,  and  an  at- 
tachment may  issue. 

1619.  When  guardian  may  be  re- 
quired to  file  final  account. 

1630.  Proceedings  on  application  for 
guardianship. 

1631.  Letters  of  guardianship  to  issue. 
1633.  Executor   or  administrator  of 

deceased  guardian  authorized 
to  pay  into  office  of  clerk  mo- 
neys, &c.,  belonging  towards. 


608  GUAEDIAN  aND  WARD.       [Chap.  35. 

Sec.  1557.  Bond  of  public  guardian.  1874-'5,  c.  231, 
s.  3. 

The  public  guardian  shall  enter  into  bond  with  three 
or  more  securities,  approved  by  the  clerk  of  the  superior 
court,  in  the  penal  sum  of  six  thousand  dollars,  payable 
to  the  state  of  North  Carolina,  conditioned  faithfuily  to 
perform  the  duties  of  his  office  and  obey  all  lawfvil  orders 
of  the  superior  or  other  courts  touching  said  guardian- 
ship of  all  wards,  money  or  estate  that  may  come  into 
his  hands. 

Sec.  1558.  Bond  to  be  enlarged.    1874-'5,  c.  221,  s.  3. 

Whenever  the  aggregate  value  of  the  real  and  personal 
estate  belonging  to  his  several  wards  shall  exceed  one- 
half  the  bond  herein  required  the  clerk  of  the  superior 
court  shall  require  him  to  enlarge  his  bond  in  amount  so 
as  to  cover  at  least  double  the  aggregate  amount  under 
his  control  as  guardian. 

Sec.  1559.  Bond  to  be  renewed  every  two  years.  1874- 
'5,  c.  321,  s.  4. 

The  public  guardian  as  aforesaid  shall  renew  his  ofiScial 
bond  every  two  years. 

Sec.  1560.  Oatli  to  be  taken  and  subscribed.  1874-'6,  c. 
221,  s.  5. 

The  public  guardian  shall  take  and  subscribe  an  oath 
(or  affirmation)  faithfully  and  honestly  to  discharge  the 
duties  imposed  upon  him;  the  oath  so  taken  and  sub- 
scribed shall  be  filed  in  the  office  of  the  clerk  of  the  su- 
perior court. 

Sec.  1561.  Public  guardian  to  apply  for  letters;  when  let- 
ters to  be  revoked  on  application;  powers  and  duties 
of  public  guardians.    1874-'5,  c.  221,  ss.  6,  7. 

The  public  guardian  shall  apply  for  and  obtain  letters  of 
guardianship  in  the  following  cases: 

(1)  When  the  period  of  six  months  has  elapsed  from 
the  discovery  of  any  property  belonging  to  any  minor, 
idiot,  lunatic,  insane  person  or  inebriate,  without  guar- 
dian; 

(2)  When  any  person  entitled  to  letters  of  guardianship 
shall  i-equest  in  writing  the  clerk  of  the  superior  court  to 
issue  letters  to  the  public  guardian:  Provided,  it  shall  be 
lawful  and  the  duty  of  the  clerk  of  the  superior  court  to 
revoke  said  letters  of  guardianship  at  any  time  after  is- 
suing the  same  upon  application  in  writing  by  any  person 


Chap.  35.]       GUAEDIAN  AND  WAED.  609 

entitled  to  qualify  as  guardian,  setting  forth  a  sufficient 
cause  for  such  revocation.  The  powers  and  duties  of  said 
public  guardian  shall  be  the  same  as  other  guardians,  and 
shall  be  su'cject  to  the  same  duties  and  habilities  as  other 
guardians  under  the  existing  laws;  said  guardian  shall  re- 
ceive such  compensation  as  other  guardians. 

Sec.  1562.  Father  may  appoint  guardian  by  deed  or  will; 
or  If  father  be  dead,  mother  may  appoint.  R.  C,  c.  54, 
s.  1.  1762,  c.  69,  s.  2.  1868-'9,  c.  201,  s.  1.  1881,  c. 
64. 

Any  father,  though  he  be  a  minor,  may,  by  deed  exe- 
cuted in  his  lifetime  or  by  his  last  will  and  testament  in 
writing,  dispose  of  the  custody  and  tuition  of  any  of  his 
infant  children,  being  unmarried  and  whether  born  at  his 
death  or  in  ventre  sa  mere,  for  such  time  as  the  children 
may  remain  under  twenty-one  years  of  age,  or  for  any 
less  time. 

Or  in  case  such  father  shall  be  dead  and  shall  not  have 
exercised  his  said  right  of  appointment,  then  the  mother, 
whether  of  full  age  or  a  minor,  may  do  so;  and  when- 
ever any  such  mother  may  have  heretofore  made  such 
appointment  by  will  and  died  leaving  minor  children  who 
have  not  since  had  a  guardian  appointed  by  law,  then 
such  appointment  by  wiU  shall  be  as  valid  and  binding  as 
if  this  section  had  been  in  existence  at  the  time  of  her 
decease. 

Long  V.  Rhymes,  2  Mur.,  123;  Peyton  v.  Smith,  3  D.  &  B.  Eq.,  835; 
Williamson  v.  Jordan,  Bush.  Eq..  46;  Armfield  v.  Brown,  70—37;  Harris 
V.  Harrison,  78—202. 

Sec.  1563.  Effect  of  such  appointment.  K.  C,  c.  54,  s.  1. 
1762,  c.  69,  s.  2.    1868-'9,  c.  201,  s.  2. 

Every  such  appointment  shall  be  good  and  effectual 
against  any  person  claiming  the  custody  and  tuition  of 
such  child  or  children. 

Sec.  1564.  Powers  and  liabilities  of  guardians  by  deed  or 
will.  B.  C,  c.  54,  s.  1.  1762,  c.  69,  s.  2.  1868-'9,  c. 
201,  s.  3. 

Every  guardian  by  deed  or  will  shall  have  the  same 
powers  and  rights  and  be  subject  to  the  same  liabilities 
and  regulations  as  other  guardians. 

Sec.  1565.  Mother  to  be  natural  guardian  of  child,  if 
father  dead.    1883,  c.  364. 

In  case  of  the  death  of  the  father  of  an  infant,  the 


610  GUAEDIAN  AND  WARD.       [Chap.  35. 

mother  of  such  child  sm-viving  such  father  shall  immedi- 
ately become  the  natural  guardian  of  such  child  to  the 
same  extent  and  in  the  same  manner,  plight  and  condi- 
tion as  the  fatlier  would  be  if  living;  and  the  mother  in 
such  case  shall  have  all  the  powers,  rights  and  privileges, 
and  be  subject  to  all  the  duties  and  obligations  of  a  nat- 
ural guardian :  Provided,  that  this  section  shall  not  be 
construed  as  abridging  the  powers  of  the  courts  over 
minors  and  their  estates  and  to  the  appointment  of 
guardians. 

Sec.  1566.  Jurisdiction  of  clerks  of  the  superior  court. 
R.  C,  c.  54,  s.  2.  1762,  c.  69,  ss.  5,  7.  1868-'9,  c. 
201,  s.  4. 

The  clerks  of  the  superior  court  within  their  respective 
counties  shall  have  full  power,  from  time  to  time,  to  take 
cognizance  of  aU  matters  concerning  orphans  and  their 
estates  and  to  appoint  guardians  in  all  cases  of  infants, 
idiots,  lunatics  and  inebriates,  except  where  otherwise 
prescribed  by  law. 

Mills  V.  McAllister,  1  Hay.,  303;  Grant  v.  Whittaker,  1  Mur.,  231;  Long 
V.  Rhymes,  2  Miir.,  122;  West  v.  Kittrell,  1  Hawks,  493;  Harris  v.  Rich- 
ardson, 4  Dev.,  279;  Bath  y.  Vick,  4  Dev.,  294:  Davis  v.  Summerville,  4 
Dev.,  382;  Cooke  v.  Beale,  11  Ired.,  3J;  Moore  v.  Askew,  85—199. 

Sec.  1567.  May  appoint  tutor  of  person  and  8:uardian  of 
estate.  K.  C,  c.  54,  s.  3.  1840,  c.  31,  ss.  1,  2.  1868- 
'9,  c.  201,  s.  5. 

Instead  of  granting  general  guardianship  to  one  per- 
son, the  clerk  of  the  superior  court  may  commit  the  tui- 
tion and  custody  of  the  person  to  one  and  the  charge  of 
his  estate  to  another,  whenever  and  at  any  time  during 
minority,  inebriety,  idiocy  or  lunacy,  it  appears  most 
conducive  to  the  proper  care  of  the  orphan's,  inebriate's, 
idiot's  or  lunatic's  estate,  and  to  his  suitable  maintenance, 
nurture  and  education. 

Sec.  1568.  May  allow  yearly  sums  for  support  and  edu- 
cation. K.  C,  c.  54,  s.  3.  1840,  c.  31,  ss.  1,  2.  1868- 
'9,  c.  201,  s.  6. 

In  such  cases  the  clerk  must  order  what  yearly  sums  of 
money  or  other  provisions  shall  be  allowed  for  the  sup- 
port and  education  of  the  orphan,  or  for  the  maintenance 
of  the  idiot,  lunatic  or  inebriate,  and  must  prescribe  the 
time  and  manner  of  paying  the  same;  but  such  allow- 
ance may,  upon  application  and  satisfactory  proof  made, 
be  reduced  or  enlarged,  or  otherwise  modified,  as  the 


Chap.  35.]       GUAEDIAN  AND  WAED.  611 

ward's  condition  in  life  and  the  kind  and  value  of  his 
estate  may  require. 

Sec.  1569.  What  disbursements  and  commissions  al- 
lowed. R.  C,  c.  54,  s.  3.  1840,  c.  31,  ss.  1,  2,  1868- 
'9,  c.  201,  s.  7. 

All  payments  made  by  the  guardian  of  the  estate  to 
the  tutor  of  the  person,  according  to  any  such  order,  shall 
be  deemed  just  disbursements  and  be  allowed  in  the  set- 
tlement of  ])is  accounts;  but  for  the  payment  thereof  by 
the  one  and  the  receipt  thereof  by  the  other  merely,  no 
commissions  shall  be  allowed  to  either,  though  commis- 
sions may  be  allowed  to  the  tutor  of  the  person  on  his 
disbursements  only. 

Burke  v.  Turner,  85—500. 

Sec.  1570.  In  cases  of  divorce,  who  to  have  custody  of 
children.  K.  C,  c.  54,  s.  4.  1838,  c.  16,  ss.  1,  2. 
1868-'9,  c.  201,  s.  8. 

"When  parents,  divorced  from  the  bonds  of  matrimony, 
or  from  bed  and  board,  have  any  child  under  twenty-one 
years,  the  court  granting  the  divorce  may  commit  his  cus- 
tody and  tuition  to  the  father  or  mother  as  may  be 
thought  best;  or  the  court  may  commit  the  custody  and 
tuition  of  such  infant  child,  in  the  first  place,  to  one 
parent  for  a  limited  time,  and  after  the  expiration  of  that 
time,  then  to  the  other  parent;  and  so  alternately. 

Sec.  1571.  Incases  of  divorce,  how  guardian  of  estate  ap- 
pointed. K.  C,  c.  64,  s.  4.  1838,  c.  16,  ss.  1,  2. 
1868-'9,  c.  201,  s.  9. 

In  cases  provided  for  by  the  preceding  section,  where 
such  child  is  entitled  to  any  estate,  the  court  granting  the 
divorce  must  certify  that  fact  to  the  superior  court,  to  the 
end  that  the  clerk  thereof  may  appoint  a  fit  and  proper 
person  to  take  the  care  and  management  of  such  estate, 
whose  powers  and  duties  shall  be  the  same  in  all  respects 
as  other  guardians,  except  that  a  guardian  so  appointed 
shall  not  have  any  authority  over  the  person  of  such 
child,  unless  the  guardian  be  the  father  or  mother. 

Section  1572.  Guardian  of  estate,  when  father  is  alive. 
R.  C,  c.  54,  ss.  4,  7.  1806,  c.  707,  s.  1.  1838,  c.  16, 
ss.  1,  2.    1868-'9,  c.  201,  s.  lO. 

The  clerk  of  the  superior  court  may  appoint  a  guardian 
of  the  estate  of  any  minor,  although  the  father  of  such 
minor  be  living.     And  the  guardian  so  appointed  shall 


612  GUAEDIAN  AND  WAED.       [Chap.  35. 

be  governed  in  all  respects  by  the  laws  relative  to  guard- 
ians of  the  estate  in  other  cases,  but  shall  have  no  au- 
thority over  the  person  of  such  minor. 

Sec.  1573.  Guardian  not  to  receive  property  until  securi- 
ty given.    C.  C.  P.,  s.  355. 

No  guardian  appointed  for  an  infant,  idiot,  lunatJc,  in- 
sane person,  or  inebriate,  shall  be  permitted  to  receive 
property  of  the  infant,  idiot,  lunatic,  insane  person  or  in- 
ebriate until  he  shall  have  given  sufficient  security,  ap- 
proved by  a  judge,  or  the  court  to  accoimt  for  and  apply 
the  same  under  the  direction  of  the  court. 

Sec.  1574.  Bond  to  be  given  by  guardian;  to  be  increased 
on  sale  of  property.  K.  C,  c.  54,  s.  5.  1762,  c.  69,  s. 
7.  1825,  c.  1285,  s.  2.  1833,  c.  17.  1868-'9,  c.201, 
s.  11,     1874.'5,c.  214. 

Every  guardian  of  the  estate,  before  letters  of  appoint- 
ment are  issued  to  him,  must  give  a  bond  payable  to  the 
state,  with  two  or  more  sufficient  sureties,  to  be  acknowl- 
edged before  and  approved  by  the  clerk  of  the  superior 
court,  and  to  be  jointly  and  severally  bound.  The  pen- 
alty in  such  bond  must  be  double,  at  least,  the  value  of 
all  personal  property,  and  the  rents  and  profits  issuing 
from  the  real  estate  of  the  infant;  which  value  is  to  be 
ascertained  by  the  clerk  of  the  superior  court  by  the  ex- 
amination, on  oath,  of  the  applicant  for  guardianship,  or 
of  any  other  person.  The  bond  must  be  conditioned  that 
such  guardian  shall  faithfully  execute  the  trust  reposed  in 
him  as  such,  and  obey  all  lawful  orders  of  the  clerk  or 
judge,  touching  the  guardianship  of  the  estate  commit- 
ted to  him:  Provided,  if  on  application  by  the  guardian 
by  petition  the  court  or  judge  shall  decree  a  sale  for  any 
of  the  causes  set  forth  in  section  sixteen  hundred  and 
two,  the  property  of  such  infant,  idiot,  lunatic  or  insane 
person,  before  such  sale  be  confirmed,  the  guardian  shall 
be  required  to  file  a  bond  as  now  required  in  double  the 
amount  of  the  real  property  so  sold. 

Barrettv.Munroc,  4D.  &B.,  194;  Shult  v.  Carloss,  1  Ired.  Eq.,  232;  Hor- 
ton  V.  Horton,  4  Ired.  Eq.,  54;  Boyctt  v  Ilurst,  1  Jon.  Eq.,  16G;  Matthews 
V.  Downs,  1  Jon.  Eq.,  331;  State  v.  Brown,  67 — 475:  Moore  v.  Askew, 
85—199. 

Sec.  1575.  Action  on  bond.  R.  C,  c.  54,  s.  5.  1762,  c. 
69,8.7.  1825,  c.  1285,  s.  2.  1833,  c.  17.  1868-'9, 
c.  201,  s.  12. 

The  bond  so  taken  shall  be  recorded  in  the  oflSce  of  the 


Chap.  35.]       GUAEDIAN  AND  WARD.  613 

clerk  of  the  superior  court  appointing  the  guardian;  and 
any  person  injured  by  a  breach  of  the  condition  thereof, 
may  prosecute  a  suit  thereon,  as  in  other  actions. 

McKinnon  v.  McKinnon,  8t — 201,  and  cases  under  preceding  section. 

Sec.  1576.  Whea  wards  have  property  in  common,  one 
bond.  R.  C,  c.  54,  s.  8.  1822,  c.  1161,  ss.  1,  2. 
1868-'9,  c.  201,  s.  13. 

When  the  same  person  is  appointed  guardian  to  two 
or  more  minors,  idiots,  lunatics  or  insane  persons  pos- 
sessed of  one  estate  in  common,  the  clerk  of  the  superior 
court  may  take  one  bond  only  in  such  case,  upon  which 
each  of  the  minors,  or  persons  for  whose  benefit  the  bond 
is  given,  or  their  heirs  or  personal  representatives,  may 
have  a  separate  action. 

Sec.  1577.  Return  within  three  months.  R.  C,  c.  54,  s. 
11.  1762,  c.  69,  s.  9.  C.  C.  P.,  s.  477.  1868-'9,  c. 
201,  s.  14. 

Every  guardian,  within  three  months  after  his  appoint- 
ment, shall  exhibit  an  account,  upon  oath,  of  the  estate 
of  his  ward,  to  the  clerk  of  the  superior  court;  but  such 
time  may  be  extended  by  the  clerk  of  the  superior  court, 
on  good  cause  shown,  not  exceeding  six  months. 

Saunderson  v.  Saunderson,  79 — 369. 

Sec.  1578.  Compelling  return.  R.  C,  c.  54,  s.  12.  1762, 
c.  69,  s.  15.     1816,  c.  905,  ss.  1.  2.    1868-'9,  c.  201, 

s.  15. 

In  cases  of  default  to  exhibit  the  return  required  by 
the  preceding  section,  the  clerk  of  the  superior  court 
must  issue  an  order  requiring  the  guardian  to  file  such 
return  forthwith,  or  to  show  cause  why  an  attachment 
should  not  issue  against  him.  If,  after  due  service  of 
the  order,  the  guardian  does  not,  on  the  retui-n  day  of 
the  order,  file  such  return,  or  obtain  further  time  to  file 
the  same,  the  clerk  of  the  superior  court  shall  issue  an 
attachment  against  him,  and  commit  him  to  the  common 
jail  of  the  county,  till  he  files  such  return. 

Blanch  v.  Arrington,  2  Car.  L.  Rep.,  252;  Harrison  v.  Ward,  3  Dev., 
417;  Harris  v.  Harrison,  78 — 202;  Saunderson  v.  Saunderson,  79—369. 

Sec.  1579.  Return  to  be  made  of  new  assets.  1868-'9,  c. 
201,  s.  16. 

Whenever  further  property  of  any  kind,  not  included 
in  any  previous  return,  comes  to  the  hands  or  knowledge 
of  any  guardian,  he  must  cause  the  same  to  be  returned 


614  GUARDIAN  AND  WAED.         [Chap.  35 

within  three  months  after  the  possession  or  discovery 
thereof;  and  the  making  of  such  return  of  new  assets, 
from  time  to  time,  may  be  enforced  in  the  same  manner 
as  prescribed  in  the  preceding  seel  ion. 

Sec.  1580.  Annual  account.  R.  C,  c.  54,  s.  11.  1762,  c. 
69,  s.  9.     lS68-'9,  c.  201,  s.  17. 

Eveiy  guardian  shall  annually  exhibit  his  account  to 
the  clerk  of  the  superior  com-t,  as  hereinafter  prescribed. 

Moore  v.  Askew,  85—190. 

Sec.  1581.  Bond  to  be  renewed.  R.  C,  c.  54,  s.  lO. 
1820,  c.  1039,  ss.  1,  2.  1824,  c.  1246.  1868-'9,  c. 
201,  s.  18. 

Every  guardian  shall  renew  his  bond  before  the  clerk 
of  the  superior  court  every  three  years,  during  the  con- 
tinuance of  the  guardianship. 

Jones  V.Hayes,  3Ired.Eq.,503;Butlerv.  Durham,  3  Ired.  Eq.,589;  Jones 
V.  Blanton,  6  Ired.  Eq.,  115;  Jones  v.  Biggs,  1  Jon.,  364;  State  v.  Lowe,  64 
—500. 

Sec.  1582.  Guardian  failing  to  renew  bond,  duty  of  clerk. 
R.  C,  c.  54,  s.  12.  1762,  c.  69,  s.  15.  1816,  c.  906, 
ss.  1,  2.    1868-'9,  c.  201,  s.  19.     1869-'70,  c.  144. 

The  clerk  of  the  superior  court  shall  issue  a  citation 
against  every  guardian  failing  to  renew  his  bond,  as  di- 
rected in  the  preceding  section,  requiring  such  guardian 
to  renew  his  bond  within  twenty  days  after  service  of  the 
citation;  and  on  return  of  the  citation  duly  served  and 
failure  of  the  guardian  to  comply  therewith,  the  clerk 
shall  remove  him  and  appoint  a  successor. 

Jones  V.  Biggs,  1  Jon.,  364;  Harris  v.  Harrison,  78 — 202. 

Sec.  1583.  Power  and  duty  of  clerks  over  guardians  abus- 
ing their  trust.  R.  C,  c.  54,  ss.  2,  13.  1762,  c.  69, 
SS.4,  5,  6,  9.  16.  1868-'9,  c.  201,  s.  20.  C.  C.  P.,  s. 
457. 

The  clerks  of  the  superior  court  shall  have  power,  on 
information  or  complaint  made,  at  all  times  to  remove 
guardians  and  appoint  successors,  to  make  and  establish 
rules  for  the  better  ordering,  managing  and  securing  in- 
fants' estates,  and  for  the  better  education  and  mainten- 
ance of  wards;  and  it  shall  be  their  duty  to  do  so  in  the 
following  cases: 

(1)  Where  the  guardian  wastes  or  converts  the  money 
or  estate  of  the  ward  to  his  own  use; 


Chap.  35.]      GUAEDIAN  AND  WARD.  615 

(2)  Where  the  guardian  in  any  manner  mismanages 
the  estate. 

(3)  Where  the  guardian  is  about  or  intends  to  marry 
any  ward  in  disparagement. 

(i)  Where  the  guardian  neglects  to  educate  or  mam- 
tain  the  ward  in  a  manner  suitable  to  his  or  her  degree. 

(5)  Where  the  guardian  is  legally  disqualified  to  act  as 
a  person  would  be  to  be  appointed  administrator  under 
the  chapter  concerning  executors  and  administrators. 

(6)  Where  the  guardian  or  his  sureties  are  hkely  to 
become  insolvent  or  non-residents  of  the  state. 

Bray  v.  Brumsey,  1  Mur.,  227;  Cook  v.  Beale.  11  Ired.,  36;  Link  v. 
Brooks,   Phil.,  499;  State  v.  Harrison,  75—433;  Moore  v.  Askew,  85—199. 

Sec.  1584.  Action  to  be  brought  by  solicitor,  when.  K.  C, 
c.  54,  s.  14.  1844,  c.  41,  s.  1.  1868-'9,  c.  201,  s.  21. 

Whenever  any  guardian  is  removed,  and  no  person  is 
appointed  to  succeed  in  the  guardianship,  the  clerk  of  the 
superior  court  shall  certify  the  name  of  such  guardian 
and  his  sureties  tothesohcitorof  the  judicial  district,  who 
shall  forthwith  institute  an  action  on  the  bond  of  the 
guardian  in  the  superior  court,  for  securing  the  estate  of 
the  ward. 

Becton  V.  Becton,  3  Jon.  Eq.,  423;  State  v.  Harrison,  75—433;  Harris  v. 
Harrison,  78—303;  Kerr  v.  Brandon,  84—138. 

Sec.  1585.  Receiver  to  be  appointed,  when.  K.  C,  s.  54, 
s.  15.    1844,  c.  41,  s.  2.    lS68-'9,  c.  201,  s.  22. 

The  judge  of  the  superior  court,  before  whom  such  ac- 
tion is  brought,  shall  have  power  to  appoint  the  clerk  of 
the  superior  court  or  some  discreet  person  as  a  receiver 
to  take  possession  of  the  ward's  estate,  to  collect  all 
moneys  due  to  him,  to  secure,  loan,  invest  or  apply  the 
same  for  the  benefit  and  advantage  of  the  ward,  under 
the  direction  and  subject  to  such  rules  and  orders  in  every 
respect  as  the  said  judge  may  from  time  to  time  make 
in  regard  thereto  ;  and  the  accounts  of  such  receiver  shall 
be  returned,  audited  and  settled  as  the  judge  may  direct. 
The  receiver  shall  be  allowed  such  amounts  for  his  time, 
trouble  and  responsibility  as  seem  to  the  judge  reasonable 
and  proper ;  and  such  receivership  may  be  continued 
until  a  suitable  person  can  be  procured  to  take  the  guar- 
dianship. 

State  V.  Harrison,  75—433;  Keir  v.  Brandon,  84r-128;  Tiroberlake  v. 
Green,  84—658;  Rogers  v.  Odom,  86—432. 


616  GUAEDIAN  AND  WARD.       [Chap.  35, 

Sec.  1586.  Compensation  of  solicitor.  K.  C,  c.  54,  s.  16. 
1840,  c.  41,  s.  3.  1868-'9,  c.  201,  s.  23. 

The  solicitor  shall  prosecute  the  action  and  take  all 
necessary  orders  therein,  and  for  his  services  shall  be  al- 
lowed such  reasonable  compensation  as  may  be  just. 

Harris  V.  Uamson,  78—202;  Timberlake  v.  Green,  84—658. 

Sec.  1587.  Property,  how  obtained  from  receiver  when 
guardian  appointed.  K.  C,  c.  54,  s.  17.  1846,  c.  44, 
s.  4.  1868-'9,  c.  201,  s.  24. 

When  another  guardian  is  appointed,  he  may  apply  by 
motion,  on  notice,  to  the  judge  of  the  superior  court  for 
an  order  upon  the  receiver  to  pay  over  all  the  money,'  es- 
tate and  effects  of  the  ward  ;  and  if  no  such  guardian  is 
appointed,  then  the  ward,  on  coming  of  age,  or  in  case  of 
his  death,  his  executor,  administrator  or  collector,  and 
the  heir  or  personal  representative  of  the  idiot,  lunatic  or 
insane  person,  shall  have  the  like  remedy  against  the  re- 
ceiver. 

Timberlake  v.  Green,  84—658. 

Sec.  1588.  Guardian  to  take  charge  of  ward's  estate.  R. 
C,  c.  54,  s.  21.  1762,  c.  69,  s.  3.    1868-'9,  c.  201, 

s.  25. 
Every  guardian  shall  take  possession,  for  the  use  of  the 
ward,  of  all  his  estate,  and  may  bring  aU  necessary  ac- 
tions therefor. 

Sec.  1589.  Guardian  to  sell  goods  and  chattels  of  ward, 
liable  to  perish,  &c.  K.  C,  c.  54,  s.  22.  1762,  c.  69,  s. 
10.  1793,  c.  391,  s.  1.  1816,  c.  925.  1868-'9,  c. 
201,  s.  26. 

Every  guardian  shall  sell,  by  order  of  the  clerk  of  the 
superior  court,  all  such  goods  and  chattels  of  his  ward  as 
may  be  liable  to  perish  or  be  the  worse  for  keeping. 
Every  such  order  shall  be  entered  in  the  order  record  of 
the  superior  court  and  must  contain  a  desci-iptive  list  of 
the  property  to  be  sold,  with  the  terms  of  sale. 

Sec.  1590.  Sale  and  rentings,  how  made.  K.  C,  c.  54,  s. 
26.    1794,  c.  413,  ss.  1,2.     1868-'9,  c.  201,  s.  27. 

All  sales  and  rentings  shall  be  made  and  conducted  by 
guardians  in  the  same  manner,  upon  like  terms  and 
notice,  and  under  the  same  rules  and  regulations  and  the 
same  penalties  as  prescribed  for  sales  made  by  executors, 
administrators  and  collectors. 

Norman  v.  Dunbar,  8  Jon.,  317. 


Chap.  35.]       GUAEDIAN  AND  WAED.  617 

Sec.  1591.  Guardian  may  lease  lands,  when.  K.  C,  c.  54, 
s.  25.   1762,  c.  69,  s.  13,  amended. 

The  guardian  may  lease  the  lands  of  an  infant  for  a 
term  not  exceeding  the  end  of  the  current  year  in  which 
the  infant  shall  come  of  age,  or  die  in  non-age.  But  no 
guardian  without  leave  of  the  clerk  of  the  superior  court, 
shall  lease  any  land  of  his  ward  without  impeachment  of 
waste,  or  for  a  term  of  more  than  three  years,  unless  at 
a  rent  not  less  than  three  per  centum  on  the  assessed 
taxable  value  of  the  land. 

Melton  V.  McKesson,  13  Ired.,  475. 

Sec.  1592.  Notes  taken  by  gwardian  to  bear  compound 
interest.  B.  C,  c.  54,  s.  23.  1762,  c.  69,  s.  10.  1793, 
c.  391,  s.  1.  1816,  c.  925.   1868-'9,  c.  201,  s.  29. 

When  the  profits  of  any  ward's  estate  is  more  than 
sufficient  to  maintain  and  educate  him  the  guardian  shall 
lend  the  surplus  upon  bond  with  sufficient  security,  to  be 
repaid  with  interest  annually,  and  all  the  bonds,  notes  or 
other  obligations  which  he  shall  take  as  guardian,  shall 
bear  compound  interest,  for  which  he  must  account,  and 
he  may  assign  the  same  to  the  ward  on  settlement  with 
him. 

Do-well  V.  Vannoy,  3  Dev.,  43;  Powell  v.  Jones,  1  Ired.  Eq.,  337;  Fox 
V.  Alexander,  1  Ired.  Eq.,  340;  Lockhart  v.  Phillips,  1  Ired.  Eq.,  342;  State 
V.  Arrington,  3  Ired.,  99;  Gary  v.  Cannon,  3  Ired.  Eq.,  04;  Christmas  v. 
"Wright,  3  Ired.  Eq.,  549;  Exum  v.  Bowden,  4  Ired.  Eq.,  281;  Newsom  v. 
Newsom,  5  Ired.  Eq.,  133;  Goodson  Y.  Goodson,  6  Ired.  Eq.,  238;  Ford  v. 
Vandyke,  11  Ired.,  227;  Williamson  v.  Williams,  6  Jon.  Eq.,  62;  Hurdle 
V.  Leath,'63— 597;  Smith  v.  Gilmer,  64—546;  State  v.  Toy,  65—265;  Little 
V.  Anderson,  71—190;  Rowland  v.  Thompson,  73—504. 

Sec.  1593.  Liability  of  guardian  for  debts.  R.  C,  c.  54,  s. 
23.  1762,  c.  69,  s.  lO.  1793,  c.  391,  s.  1.  1816,  c. 
925.   1868-'9,  c.  201,  s.  30. 

Every  guardian  shall  diligently  endeavor  to  collect,  by 
all  lawful  means,  all  bonds,  notes,  obligations  or  moneys 
due  his  ward  when  any  debtor  or  his  sureties  are  likely 
to  become  insolvent,  on  pain  of  being  liable  for  the 
same. 

Sec.  1594.  How  guardians  may  invest.    1870-'71,c.  197, 

s.  1. 

Guardians,  trustees  and  others  acting  in  a  fiduciary 
capacity,  having  surplus  funds  of  their  wards  and  cestui 
que  trusts  to  loan,  may  invest  in  United  States  bonds,  or 
any  securities  whereof  the  United  States  are  responsible. 


618  GUAEDIAN  AND  WARD.       [Chap.  35. 

and  in  all  settlements  by  guardians,  trustees  and  others, 
acting  in  a  fiduciary  capacity,  such  bonds  or  other 
security  of  the  United  States  shall  be  deemed  cash,  in- 
cluding the  premium,  if  any  paid  for  such  bonds  or  other 
securities,  and  may  be  paid  as  such  by  the  transfer  there- 
of to  the  persons  entitled. 

Sec.  1595.  Guardian  liable  for  lands  forfeited  for  taxes. 
R.  C,  c.  54,  s.  27.  1762,  c.  69,  s.  14.  1868-'9,  c.  201, 
s.  32. 

If  any  guardian  suffer  his  ward's  lauds  to  lapse  or  be- 
come forfeited  or  be  sold  for  non-payment  of  taxes  or 
other  dues,  he  shall  be  liable  to  answer  for  the  full  value 
thereof  to  his  ward. 

Sec.  1596.  When  guardian  may  seU  timber.  B.  C,  c.  54, 
8.27.    1762,  c.  69,  s.  14.    1868-'9,  c.  201,  s.  33. 

In  case  the  land  cannot  be  rented  for  enough  to  pay 
the  taxes  and  other  dues  thereof,  and  there  is  not  money 
sufficient  for  that  purpose,  the  guardian,  with  the  con- 
sent of  the  clerk  of  the  superior  court,  may  annually  dis- 
pose of,  or  use  so  much  of  the  light  wood,  and  box  or 
rent  so  many  pine  trees,  or  sell  so  much  of  the  timber  on 
the  same,  as  may  raise  enough  to  pay  the  taxes  and 
other  dues  thereon  and  no  more. 

Evans  v.  "Williamson,  79 — 86. 

Sec.  1597.  Plate  to  be  kept.    1868-'9,  c.  201,  s.  34. 

All  plate  shall  be  preserved  and  dehvered  to  the  ward 
at  age,  in  kind,  according  to  weight  and  quantity. 

Sec.  1598.  Foreign  guardian  may  have  ward's  estate  re- 
moved, how.  R.  C,  c.  54,  s.  29.  1820,  c.  1044,  s.  1. 
1842,  c.  38,  ss.  1,  2.  1868-'9,  c.  201,  s.  35.  1873-'4, 
c.  168. 

Where  any  ward,  idiot,  lunatic  or  insane  person, 
residing  in  another  state  or  territory,  or  in  the  District  of 
Columbia,  is  entitled  to  any  personal  estate  in  this  state, 
or  personal  property  substituted  for  realty  by  decree  of 
court,  or  to  any  money  arising  from  the  sale  of  real 
estate,  whether  the  same  be  in  the  hands  of  any  guardian 
residing  in  this  state,  or  of  any  executor,  administrator 
or  other  person  holding  for  the  ward,  idiot,  lunatic  or  in- 
sane person,  or  if  the  same  (not  being  adversely  held  and 
claimed)  be  not  in  the  lawful  possession  or  control  of 
any  person,  the  guardian  of  the  ward,  idiot,  lunatic  or 
insane  person,  duly  appointed  at  the  place  where  such 


Chap.  35.]       GUAEDIAN  AND  WAED.  619 

ward,  idiot,  lunatic  or  insane  person  resides,  may  apply 
to  have  such  estate  removed  to  the  residence  of  the  ward, 
idiot,  lunatic  or  insane  person  by  petition  filed  in  the 
superior  court  of  the  county  in  which  the  property  or 
some  portion  thereof  is  situated. 

Pugh  V.  Mordecai,  6 Ired.  Eq.,  61;  McNeely  v.  Jamieson,  2  Jon.  Eq.,  186; 
Douglas  V.  Caldwell,  6  Jon.  Eq.,  20. 

Sec.  1599.  "What  petition  must  show.  K.  C,  c.  54,  s.  30. 
1820,  c.  1044,  s.  2.  1842,  c.  38,  s.  2.  1868-'9.  c.201, 
s.  36. 

The  petitioner  must  show  to  the  court  a  copy  of  his 
appointment  as  guardian  and  bond  duly  authenticated, 
and  must  prove  to  the  court  that  the  bond  is  sufficient  as 
well  in  the  abihty  of  the  sureties  as  in  the  sum  men- 
tioned therein,  to  secure  aU  the  estate  of  the  ward  wher- 
ever situated. 

Sec.  1600.  Who  may  be  made  defendants.  K.  C,  c.  54, 
s.  30.  1820.  c.  1044,  s.  2.  1842,  c.  38,  s.  2.  1868-'9, 
c.  201,  s.  37. 

Any  person  may  be  made  a  party  defendant  to  the  pro" 
ceeding  who  is  specified  in  section  one  hundred  and  eighty- 
four. 

Sec.  1601.  Petition  to  be  proceeded  with  as  in  other  cases 
of  special  proceedings.     1868-'9,  c.  201,  s.  38. 

The  petition  shaU  be  proceeded  on  as  prescribed  in  other 
cases  of  special  proceedings,  and  every  necessary  decree 
made,  to  the  end  that  the  guardian  may  obtain  possession 
of  all  the  estate  of  the  ward  in  case  the  judge  shaU  order 
such  removal. 

Sec.  1602.  Estates  of  ward,  how  and  when  sold.  R.  C, 
c.  54,  ss.  32,  33.  1827,  c.  33,  ss.  1,  2.  1868-'9,  c.  201, 
s.  39. 

On  application  of  the  guardian  by  petition,  verified 
upon  oath,  to  the  superior  court,  showing  that  the  inter- 
est of  the  ward  would  be  materially  promoted  by  the  sale 
of  any  part  of  his  estate,  real  or  personal,  the  proceeding 
shall  be  conducted  as  in  other  cases  of  special  proceed- 
ings; and  the  truth  of  the  matter  alleged  in  the  petition 
being  ascertained  by  satisfactory  proof,  a  decree  may 
thereupon  be  made  that  a  sale  be  had  by  such  person,  in 
such  way  and  on  such  terms  as  may  be  most  advanta- 
geous to  the  interest  of  the  wai'd;  but  no  sale  shall  be 
made  until  approved  by  the  judge  of  the  court,  nor  shall 


620  GUARDIAN  AND  WAED.       [Chap.  35. 

the  same  be  valid,  nor  any  conveyance  of  title  made, 
unless  confirmed  and  directed  by  the  judge,  and  the  pro- 
ceeds of  the  sale  shall  be  exclusively  apphed  and  secured 
to  such  purposes  and  on  such  trusts  as  the  judge  shall 
specify. 

Harrison  v.  Bradley,  5  Ired.  Eq.,  13G;  Troy  v.  Troy,  Busb.  Eq..  85; 
Douglas  V.  Caldwell,  6  Jon.  Eq.,  20;  Houston  v.  Houston,  Phil.  Eq.i  95; 
ex  parte  Bodd,  Phil.  Eq.,  97;  Rowland  v.  Thompson,  73—504;  George  v.' 
High,  85—113;  Sutton  v.  Schonwald,  86—198. 

Sec.  1603.  Property  substituted  for  that  sold  to  remain 
of  the  same  character  as  that  sold.  R.  C,  c.  54,  s.  33 
1827,  c.  33,  s.  2.     1868-'9,  c.  201,  s.  40, 

Whenever,  in  consequence  of  any  sale  under  the  pre- 
ceding section,  the  real  or  personal  property  of  the  ward 
is  saved  from  demands  to  which  in  the  first  instance  it 
may  be  liable,  the  final  decree  shall  declare  and  set  apart 
a  portion  of  the  personal  or  real  estate  thus  saved,  of 
value  equal  to  the  real  and  personal  estate  sold,  as  prop- 
perty  exchanged  for  that  sold;  and  in  all  such  cases  of 
sale,  whereby  real  is  substituted  by  personal,  or  personal 
by  real  property,  the  beneficial  interest  in  the  property 
acquired  shall  be  enjoyed,  alienated,  devised  or  be- 
queathed, and  shall  descend  and  be  distributed,  as  by  law 
the  property  sold  might  and  would  have  been,  had  it  not 
been  sold,  until  it  be  re-converted  from  the  character  thus 
impressed  upon  it  by  some  act  of  the  owner,  and  restored 
to  its  character  proper. 

Sec.  1604.  When  ward  is  indebted;  how  property  sold. 
B.  C,  c.  54,  s.  34.  1789,  c.  311,  s.  5.     1868-'9,  c.  201. 

s.  41. 

When  a  guardian  has  notice  of  a  debt  or  demand 
against  the  estate  of  his  ward,  he  may  apply  by  peti- 
tion, setting  forth  the  facts  to  the  superior  court  where- 
in the  guardianship  was  granted,  for  an  order  to  sell  so 
much  of  the  personal  or  real  estate  as  may  be  sufficient 
to  discharge  such  debt  or  demand;  and  the  order  of  the 
court  shall  particularly  specify  what  property  is  to  be 
sold  and  the  terms  of  sale;  but  no  real  estate  shall  be  sold 
under  this  section,  in  any  case,  without  the  revision  and 
confirmation  of  the  order  therefor  by  the  judge  of  the 
superior  court. 

Leary  v.  Fletcher,  1  Ired.,  209;  Marchant  v.  Sanderliu,  3  Ired.,  501; 
Ducket  V.  Skinner,  11  Ired.,  431;  Spruill  v.  Davenport,  3  Jon.,  43;  Cofleld 
V.  McLean,  4  Jon.,  15. 


Chap.  35.]       GUAEDIAN  AND  WARD.  621 

Sec.  1605.  Proceeds  to  be  assets  in  guardian's  hands  foi 
payment  of  creditors.  R.  C,  c.  64,  s.  34.  1789,  c. 
311,  s.  5.     1868-'9,  c.  201,  s.  42. 

The  proceeds  of  sale  under  the  preceding  section  shall 
be  considered  as  assets  in  the  hands  of  the  guardian  for 
the  benefit  of  the  creditors,  in  like  manner  as  assets  ni 
the  hands  of  a  personal  representative;  and  the  same 
proceedings  may  be  had  against  the  guardian  with  respect 
to  such  assets  as  might  be  taken  against  an  executor, 
administrator  or  collector  in  similar  cases. 

Sec.  1606.  Sureties  of  guardian  in  danger  of  loss,  liow  re- 
lieved. K.  C,  c.  54,  s.  35.  1762,  c.  69,  ss.  21,  22. 
1868-'9,  c.  201,  s.  43. 

Any  surety  of  a  guardian,  who  is  in  danger  of  sustain- 
ing loss  by  his  suretyship,  may  file  his  complaint  in  the 
superior  court  where  the  guardianship  was  granted,  set- 
ting forth  the  circumstances  of  his  case  and  demandnig 
relief;  and  thereupon  the  guardian  shall  be  requu'ed  to 
answer  the  complaint  within  twenty  days  after  service 
of  the  summons.  If,  upon  the  hearing,  the  clerk  of  the 
superior  court  deem  the  surety  entitled  to  relief,  the 
same  may  be  granted  by  compelhng  the  guardian  to  give 
a  new  bond,  or  to  indemnify  the  surety  against  appre- 
hended loss,  or  by  the  removal  of  the  guardian  from  his 
trust;  and  in  case  the  guardian  fail  to  give  a  new  bond 
or  security  to  indemnify,  when  required  to  do  so  within 
reasonable  time,  the  clerk  of  the  superior  court  must 
enter  a  peremptory  order  for  his  removal,  and  his  author- 
ity as  guardian  shall  thereupon  cease. 

Justices  V.  Bell,  1  D.  &  B.,  475;  Bell  v.  Jasper,  2  Ired.  Eq.,  597. 

Sec.  1607.  Interlocutory  order,  pending  controversy. 
1868-'9,  c.  201,  s.  44. 

In  all  cases  where  the  letters  of  a  guardian  are  revoked, 
the  clerk  of  the  superior  court  may,  from  time  to  time, 
pending  anv  controversy  in  respect  to  such  removal, 
make  such  "interlocutory  orders  and  decrees  as  will  tend 
to  the  better  securing  the  estate  of  the  ward,  or  other 
party  seeking  relief  by  such  revocation. 

Sec.  1608.  Guardian  may  resign,  when.  1868-'9,  c.  201, 
s.  45. 

Any  guardian  wishing  to  resign  his  trust  may  apply 
in  writing  to  the  superior  court,  setting  forth  the  cir- 
cumstances of  his  case.  If,  at  the  time  of  making  the 
apphcation,  he  also  exhibits  his  final  account  for  settle- 


622  GUARDIAN  AND  WARD.       [Chap.  35. 

ment,  and  if  the  clerk  of  the  superior  court  is  satisfied 
that  the  guardian  has  been  faithful  and  has  truly  ac- 
counted, and  if  a  competent  person  can  be  procured  to 
succeed  in  the  guardianship,  the  clerk  of  the  superior 
court  may  accept  the  resignation  of  the  guardian  and 
discharge  him  from  the  trust.  But  the  guardian  so  dis- 
charged and  his  sureties  are  still  liable  in  relation  to  all 
matters  connected  with  the  trust  before  the  resignation. 

Ellis  V.  Scott,  75—108;  Luton  v.  Wilcox,  83—20. 

See.  1609.  Duty  of  grand  jury  regarding  orphans  without 
guardians.  B.  C,  c.  54,  s.  18.  1762,  c.  69,  s.  17.  1868- 
'9,0.201,8.46. 

The  grand  jury  of  every  county  is  charged  with,  and 
shall  present  to  the  superior  court  the  names  of  all  or- 
phan children  that  have  no  guardians  or  are  not  bound 
out  to  some  trade  or  employment.  They  shall  further 
inquire  of  all  abuses,  mismanagement  and  neglect  of  all 
such  guardians  as  are  appointed  by  the  clerk  of  the  su- 
perior court.  The  clerk  of  the  superior  court  shall,  at 
each  term  of  the  superior  court,  lay  before  the  grand  jury 
a  hst  of  all  the  guardians  acting  in  his  county  or  appoint- 
ed by  him. 

Sec.  1610.  Estates  of  orphans  without  guardians,  how  se- 
cured. R.  C,  c.  54,  s.  19.  1846,  c.  48.  1868-'9,  c. 
201,  s.  47. 

Whenever  an  orphan,  having  any  estate,  is  presented 
by  a  grand  jury,  for  whom  no  suitable  person  will  be- 
come guardian,  the  clerk  of  the  superior  court  must  give 
notice  thereof  forthwith  to  the  solicitor  of  the  state  for 
the  judicial  district,  who  shall  apply  in  behalf  of  the  or- 
phan to  the  judge  of  the  superior  court  of  the  county 
where  such  presentment  was  made,  to  the  end  that  the 
estate  of  such  orphan  may  be  secm-ed  and  managed  as 
directed  in  section  fifteen  hundred  and  eighty-five. 

Rogers  v.  Odom,  86 — 433. 

Sec.  1611.  Fees  and  costs  in  certain  cases,  hy  whom  paid. 
1868-'9,  c.  201,  s.  48. 

All  fees  and  costs  of  the  superior  court  for  issuing  or- 
ders, citations,  summons  or  other  process  against  guar- 
dians for  their  supposed  defaults,  shall  be  paid  by  the 
party  found  in  default. 


Chap.  35.]       GUAEDIAN  AND  WARD.  623 

Sec.  1612.  Guardian  allowed  disbursements  and  ex- 
penses. K.  C,  c.  54,  s.  38.  1763,  c.  69,  ss.  18,  19. 
1799,  c.  536,  s.  3.     1868-'9,  c.  201,  s.  49. 

Every  guardian  may  charge  in  his  annual  account  all 
reasonable  disbursements  and  expenses;  and  if  it  appear 
that  he  hath  really  and  bona  fide  disbursed  more  m  one 
year  than  the  profits  of  the  ward's  estate,  for  his  educa- 
tion and  maintenance,  the  guardian  shall  be  allowed  and 
paid  for  the  same  out  of  the  profits  of  the  estate  m  any 
other  year;  but  such  disbursements  must,  in  all  cac-es,  be 
suitable  to  the  degree  and  circumstances  of  the  estate  of 
the  ward. 

Ryan  v.  Blount,  1  Dev.  Eq.,  383;  Hodse  v.  Hawkins,  1  D.  &  B.  Eq., 
564;  Graham  v.  Davidson,  2  D.  &  B.  Eq.,  155;  Wallier  v.  Crowder,  3  Ircd; 
Eq.,  478;  Harrison  v.  Bradley,  5  Ired.  Eq.,  136;  Goodson  v.  Goodson,  6 
Ired.  Eq.,  238;  State  v.  Cordon,  8  Ired.,  179;  Hussey  v.  Koundtree,  Busb., 
110;  Ledford  v.  Vandyke,  Busb.,  480;  Boyett  v.  Hurst,  1  Jon.  Eq.,  166; 
Burke  v.  Turner,  85—500. 

Sec.  1613.  Commissions  allowed.  K.  C,  c.  54,  s.  28. 
1763,  c.  69,  ss.  18,  19.  1799,  c.  536,  s.  2.  1868-'9, 
c.  201,  s.  50. 

The  superior  coru-t  shall  allow  commissions  to  the 
guardian  for  his  time  and  trouble  in  the  management  of 
the  ward's  estate,  in  the  same  manner  and  under  the 
same  rules  and  restrictions  as  allowances  are  made  to  ex- 
ecutors, administrators  and  collectors. 

Walton  V.  Erwin,  1  Ired.  Eq.,  136;  Long  v.  Norcom,  2  Ired.  Eq.,  854. 
Biurke  v.  Turner,  85—500. 

Sec.  1614.  liiability  of  clerk  taking  insufficient  security. 
R.  C,  c.  54,  s.  2.  1762,  c.  69,  ss.  5,  6.  1868-'9,  c. 
201,  s.  51. 

If  any  clerk  of  the  superior  court  shall  commit  the 
estate  of  an  infant,  idiot,  lunatic,  insane  person  or  ine- 
briate to  the  charge  or  guardianship  of  any  person  with- 
out taking  good  and  sufficient  security  for  the  same  as 
directed  by  law,  such  clerk  shall  be  liable,  on  his  official 
bond,  at  the  suit  of  the  party  aggrieved,  for  all  loss  and 
damages  sustained  for  want  of  security  being  taken;  but 
if  the  sureties  were  good  at  the  time  of  their  being  ac- 
cepted, the  clerk  of  the  superior  court  shall  not  be  Mable. 

Mills  V.  McAllister,  1  Hay.,  303;  Davis  v.  Somerville,  4  Dev.,  383;  Jones 
v.  Biggs,  1  Jon.,  364. 


624  GUARDIAIf  AND  WAED.       [Chap.  35., 

See.  1615.  Liability  of  clerk  for  other  defaults.  1868- 
'9,  c.  201,  s.  53. 

If  any  clerk  of  the  superior  court  shall  wilfully  or 
negligeutly  do,  or  omit  to  do,  any  other  act  prohibited, 
or  other  duty  imposed  ou  him  by  law,  by  which  act  or 
omission  the  estate  of  any  ward  suffers  damage,  he  shall 
be  hable  therefor  as  in  the  preceding  section  directed. 

Sec.  1616.  Guardians  heretofore  appointed.  1868-'9,  c. 
201,  s.  54. 

All  guardians  heretofore  appointed  by  the  late  county 
or  superior  courts,  or  coui'ts  of  equity,  and  now  acting, 
shall  be  deemed  as  fully  within  the  provisions  of  this 
chapter,  as  if  they  had  been  appointed  by  the  clerks  of 
the  superior  court  as  in  this  chapter  provided. 

Sec.  1617.  Annual  accounts.  B.  C,  c.  64,  ss.  11,  12. 
1762,  c.  69,  ss.  9,  15.  1816,  c.  905,  ss.  1,  2.  C.  C.  P., 
s.  478.     1871-'2,  c.  46. 

Every  guardian  shall,  within  twelve  months  from  the 
date  of  his  qualification  or  appointment,  and  annually, 
so  long  as  any  of  the  estate  remains  in  his  control,  fide, 
in  the  office  of  the  clerk  of  the  superior  court,  an  inven- 
tory and  account,  under  oath,  of  the  amount  of  property 
received  by  him,  or  invested  by  him,  and  the  manner 
and  nature  of  such  investment,  and  his  receipts  and  dis- 
bursements for  the  past  year  in  the  form  of  debit  and 
credit.  He  must  produce  vouchers  for  all  payments. 
The  clerk  of  the  superior  court  may  examine  on  oath 
such  accounting  party,  or  any  other  person,  concerning 
the  receipts,  disbursements  or  any  other  matter  relating 
to  the  estate;  and  having  carefully  revised  and  audited 
such  account,  if  he  approve  the  same,  he  must  indorse 
his  approval  thereon,  which  shall  be  deemed  prima  facie 
evidence  of  correctness. 

Sanderson  v.  Sanderson,  79—369;  Gregory  v.  Ellis,  82 — 235;  Moore  v. 
Askew,  85—199. 

Sec.  1618.  Failing  to  account,  clerk  to  order  an  account, 
"and  may  issue  an  attachment.    C.  C.  P.,  s.  479. 

If  any  guardian  omits  to  account,  as  directed  in  the 
preceding  section,  or  rendei-s  an  insufficient  and  unsatis- 
factory account,  the  clerk  of  the  superior  court  shall  forth- 
with order  such  guardian  to  render  a  full  and  satisfactory 
account,  as  required  by  law,  within  twenty  days  after 
service  of  the  order.  Upon  return  of  the  order,  duly 
served,  if  such  guardian  fail  to  appear  or  refuse  to  ex- 


Chap.  35.]       GUARDIAN  AND  WARD.  o2o 

hibit  such  account,  the  clerk  of  the  superior  court  may 
£sue  a,x  attachment  against  him  ^ o^contempt  and  com^ 
mithim  till  he  exliibits  such  account,  and  may  likewise 
remove  him  from  office. 
Sanderson  v.  Sanderson.  79—369. 

Sec.  1619.  When  guardian  may  be  required  to  file  final 
account.    C.  C.  P.,  s.  4=81. 

A  guardian  maybe  required  to  file  such  account  at  any 
time  after  six  months  from  the  ward's  coming  of  full  age 
01  the  cessation  of  the  guardianship;  but  such  account 
may  be  filed  voluntarily  at  any  time,  and,  whethei  the 
accounting  be  voluntary  or  compulsory,  it  shall  be 
audited  and  recorded  by  the  clerk  of  the  superior  court. 

Rowland  v.  Thompson,  64-715;  Rowland  v.  Thompson,  65-110. 

Sec.  1620.  Proceedings  on  application  for  guardianship. 
C   C   P    s  4:74. 

On  application  to  any  clerk  of  the  superior  court  for  the 
custody  and  guardianship  of  any  infant,  idiot,  inebriate 
or  lunltic,  it  is  the  duty  of  such  clei^  to  f^^ovmh.n^se^t 
of  the  circumstances  of  the  case  on  the  oath  of  te  appli- 
cant or  of  any  other  person;  and  if  none  of  the  relatives 
of  the  infant,  idiot,  inebriate  or  lunatic  are  present  at 
such  apphcation,  the  clerk  must  assign,  or,  for  any  other 
good  ckuse,  he  may  assign  a  day  for  the  hearing;  and  he 
thall  thereupon  direct  notice  thereof  to  be  given  to  such 
of  the  relatives  and  to  such  other  persons  if  any  as  he  may 
deem  it  proper  to  notify.  On  the  hearing  he  shall  ascertain, 
on  oath  the  amount  of  the  property,  real  and  personal, 
of  the  infant,  idiot,  inebriate  or  lunatic,  and  the  value 
of  the  rents  and  profits  of  the  real  estate  and  he  may 
grant  or  refuse  the  apphcation,  or  commit  the  Suardian- 
ship  to  some  other  person  as  he  may  think  best  foi  the 
interest  of  the  infant,  idiot,  inebriate,  or  lunatic. 

See.  1631.  Letters  of  guardianship  to  issue.  C.  C.  P.,  s. 
475.  , 

The  clerk  of  the  superior  court  must  issue  to  every 
guardian  appointed  by  him  a  letter  of  appomtment  which 
fhall  be  signed  by  him  and  sealed  with  the  seal  of  his 
office. 

Sec  1622.  Executor  or  administrator  of  deceased  guar- 
dian authorized  to  pay  into  office  of  clerk  moneys,  &c.. 
belonging  to  wards.     1881,  c.  .305,  s.  2. 

In  all  cases  where  a  guardian  of  any  minor  children  or 


626 


HABEAS  CORPUS. 


[Chap.  36. 


of  an  idiot,  lunatic,  inebriate  or  insane  person  shall  die, 
it  shall  be  competent  for  the  executor  or  administrator  of 
5uch  deceased  guardian,  at  an}'  time  after  the  grant  of 
letters  testamentary  or  of  administration,  to  pay  into  the 
office  of  the  clerk  of  the  superior  court  of  the  county 
where  such  deceased  guardian  was  appointed,  any 
moneys  belonging  to  any  such  minor  child,  idiot,  lunatic, 
insane  person  or  inebriate,  and  any  such  payment  shall 
have  the  effect  to  discharge  the  estate  of  said  deceased 
guardian  and  his  sureties  upon  his  guardian  bond  to  the 
extent  of  the  amount  so  paid. 


CHAPTER  THIRTY-SIX. 
HABEAS  OOEPUS. 


Section. 

1623.  In  what  cases  application  may 
be  made. 

1634.  When  the  application  may  be 
denied. 

1635.  By  whom  application  may  be 
made. 

1636.  Mode  of  making  the  applica- 
tion. 

1637.  What    application  must  con- 
tain. 

1638.  When     the    writ     must    be 
granted. 

1639.  Defect  of  form. 

1630.  Wlien  the  writ  sufficient. 

1631.  Penalty  for  refusal  to  grant 
the  writ. 

1633.  Writ  may  issue  without  appli- 
cation, when. 

1633.  The  return,  and  what  to  con- 
tain. 

1634.  Notice  to  parties  interested. 

1635.  Notice  to  district  solicitor. 

1636.  Production  of  the  body. 

1637.  Attachment  on  failure  to  obey 
the  writ. 

1638.  Penalty  for   refusing    attach- 
ment. 

1639.  Where  a  sheriff  fails  to  return. 


Section. 

1640,  Precept  to  bring  up  party  de- 
tained. 

1641.  Penalty  for  refusing  to  grant 
the  precept. 

1643.  Penalty  for  conniving,  &c.,  at 
any  insufficient  return,  &c. 

1643.  Power  of  the  county. 

1644.  Proceedings  on  return  of  the 
writ. 

1645.  Party  to  be  discharged,  when. 

1646.  Party  to  be  remanded,  when. 

1647.  Party  to  be  bailed  or  remanded, 
when. 

1648.  Proceedings  in  case  of  illness 
of  the  party. 

1649.  Penalty  for  disobedience  to 
order  of  discharge. 

1650.  Officer  not  liable  civilly  for 
obedience. 

1651.  Penalty  for  committing  for 
same  cause. 

1653.  Penally  for  neglecting  to  obey 
llio  writ,  or  for  refusing  copy 
of  process. 

1653.  False  return  a  misdemeanor. 

1654.  Penalty  for  concealing  party. 

1655.  Aiders  and  abettors. 

1656.  Writs  returnable,  when. 


Chap.  36.] 


HABEAS  COEPUS. 


627 


Section. 

1657.  By  whom  served  and  manner 
of  service. 

1658.  Persons  commuted  for  capital 
offences,  when  to  be  tried  or 
discliarged. 

1659.  Subpoenas  for  witness. 

1660.  Costs. 

1661.  Custody  and  disposition  of  in- 
fants in  certain  cases. 

1663.  When  custody  of  children  con- 
tested, either  party  may  appeal. 


Section. 

1663.  Habeas    corpus    ad    testifican- 
dum. 

1664.  Justices  of  the  peace  and  supe- 
rior court  clerks. 

1665.  Application,  what  to  contain. 

1666.  Writ,    how     and    by    whom 
served. 

1667.  Fees  and  bond  on  service. 

1668.  Duty  of  officers. 

1669.  Prisoner  to  be  remanded. 


Sec.  1623.  In  what  cases  application  may  be  made.  1868- 
'9,  c.  116,  s.  1. 

Every  person  imprisoned  or  restrained  of  his  liberty 
within  this  state,  for  any  criminal  or  supposed  criminal 
matter,  or  on  any  pretence  whatsoever,  except  in  cases 
specified  in  the  succeeding;  section,  may  prosecute  a  writ 
of  habeas  corpus,  according  to  the  provisions  of  this 
chapter,  to  inquire  into  the  cause  of  such  imprisonment 
or  restraint,  and  if  illegal  to  be  delivered  therefrom. 

Ex  parte  Summers,  5  Ired.,  149;  Mustgrove  v.  Korncga}',  7  Jon.,  71;  in 
the  matter  of  J.  C.  Bryan  and  others,  1  Winst.,  1 — 76;  in  the  matter  of 
Huie  and  others,  1  Winst.,  165—197;  Walton  v.  Gatlin,  1  Winst.,  318;  in 
the  matter  of  Walton,  1  Winst.,  425;  in  the  matter  of  Roseman  and  others, 
1  Winst.,  443;  Cox  v.  Gee.  2  Winst  ,  131;  in  the  malterof  Cain  and  others, 
3  Winst.,  141;  in  the  mailer  of  Hughes,  Phil.,  57;  in  the  matter  of  Harriet 
and  Eliza  Ambrose,  Phil.,  91;  ex  parte  Moore  and  others,  64  N.  C,  803 — 
834;  ex  parte  Moore  and  others,  65  N.  C,  349 — 368;  Thompson  v.  Thomp- 
son, 72—32. 

Sec.  1624.  When  the  application  may  be  denied.    1868- 
'9,  c.  116,  s.  2. 

Application  to  prosecute  the  writ  shall  be  denied  in  the 
following  cases: 

(1)  Where  the  persons  are  committed  or  detained  by 
virtue  of  process  issued  by  a  court  of  the  United  States, 
or  a  judge  thereof,  in  cases  where  such  courts  or  judges 
have  exclusive  jurisdiction  under  the  laws  of  the  United 
States,  or  shall  have  acquired  exclusive  jurisdiction  by 
the  commencement  of  suits  in  such  courts; 

(2)  Where  persons  are  committed  or  detained  by  virtue 
of  the  final  order,  judgment  or  decree  of  a  competent 
tribunal  of  civil  or  criminal  jurisdiction,  or  by  virtue  of 
an  execution,  issued  upon  such  final  order,  judgment  or 
decree; 

(3)  Where  any  person  has  wilfully  neglected,  for  the 


628  HABEAS  CORPUS.  [Chap.  36. 

space  of  two  whole  terms  after  his  imprisonment,  to  ap- 
ply for  the  writ  to  the  superior  court  of  the  county  in 
which  he  may  be  imprisoned,  sucli  person  shall  not  have 
a  habeas  corpus  in  vacation  time  for  his  enlargement; 

(4)  Where  no  probable  ground  for  relief  is  shown  in 
the  application. 

Ex  parte  Summers,  5  Ired.,  149;  in  re  Scheuck,  74 — 607. 

Sec.  1625.  By  whom  applicatiou  may  be  made.    1868-'9, 
c.  116,  s.  3. 

Application  for  the  writ  may  be  made  either  by  the 
party  for  whose  relief  it  is  intended,  or  by  any  person 
in  his  behalf. 

Sec.  1626.  Mode  of  making  the  application.     1868-'9,  c. 
116,  s.  4. 

Application  for  the  writ  shall  be  made  in  writing, 
signed  by  the  applicant : 

(1)  To  any  one  of  the  justices  of  the  supreme  court; 

(2)  To  any  one  of  the  superior  court  judges,  either  at 
term  time  or  in  vacation. 

Sec.  1627.  "What  application  must  contain.    1868-'9,  c. 
116,  s.  5. 

The  application  must  state  in  substance,  as  follows: 

(1)  That  the  party,  in  whose  behalf  the  writ  is  applied 
for,  is  imprisoned  or  restrained  of  his  liberty,  the  place 
where,  and  the  officer  or  person  by  whom  he  is  impris- 
oned or  restrained,  naming  both  parties,  if  their  names 
are  known,  or  describing  them  if  they  are  not  known; 

(2)  The  cause  or  pretence  of  such  imprisonment  or  re- 
straint, according  to  the  knowledge  or  behef  of  the  appli- 
cant; 

(3)  If  the  imprisonment  is  by  virtue  of  any  warrant  or 
other  process,  a  copy  thereof  shall  be  annexed,  or  it  shall 
be  made  to  appear  that  a  copy  thereof  has  been  demand- 
ed and  refused,  or  that  for  some  sufficient  reason  a 
demand  for  such  copy  could  not  be  made; 

(4)  If  the  imprisonment  or  restraint  be  alleged  to  be 
illegal,  the  application  must  state  in  what  the  alleged 
illegality  consists;  and  that  the  legality  of  the  impi-ison- 
ment  or  restraint  has  not  been  already  adjudged,  upon  a 
prior  writ  of  habeas  corpus,  to  the  knowledge  or  belief  of 
the  applicant; 

(5)  The  facts  set  forth  in  the  application  must  be  veri- 
fied by  the  oath  of  the  applicant,  or  by  that  of  some 


Chap.  36.]  HABEAS  CORPUS.  629 

other  credible  witness,  which  oath  may  be  administered 
by  any  person  authorized  by  law  to  take  affidavits. 

In  re  Sclienck,  74—607. 

Sec.  1628.  When  the  writ  must  be  granted.    1868-'9,  c. 
116.  s.  6. 

Any  court  or  judge  empowered  to  grant  the  writ,  to 
whom  such  applications  may  be  presented,  shall  grant 
the  writ  without  delay,  unless  it  appear  from  the  apph- 
cation  itself  or  from  the  documents  annexed  that  the 
person  applying  or  for  whose  benefit  it  is  intended  is,  by 
this  chapter,  prohibited  from  prosecuting  the  writ. 

Sec.  1629.  Defect  of  form.    1868-'9,  c.  116,  s.  7. 

No  writ  of  habeas  corpus  shall  be  disobeyed  on  account 
of  any  defect  of  form. 

Sec.  1630.  When  the  writ  sufficient.     1868-'9,   c.    116, 

s.  8. 
It  shall  be  sufficient: 

(1)  If  the  person  having  the  custody  of  the  party  im- 
prisoned or  restrained  be  designated  either  by  his  name  of 
office,  if  he  have  any,  or  by  his  own  name,  or  if  both 
such  names  be  unknown  or  uncertain,  he  may  be  de- 
scribed by  an  assumed  appellation,  and  any  one  who 
may  be  served  with  the  writ  shall  be  deemed  the  person 
to  whom  it  is  directed,  although  it  may  be  directed  to 
him  by  a  wrong  name,  or  description,  or  to  another  per- 
son; 

(2)  If  the  person  who  is  directed  to  be  produced  be 
designated  by  name,  or  if  his  name  be  uncertain  or  un- 
known, he  may  be  described  by  an  assumed  appellation 
or  in  any  other  way,  so  as  to  designate  the  person  in- 
tended. 

Sec.  1631.  Penalty  for  refusal  to  grant  the  writ.  1868-'9, 
c.  116,  s.  9. 
If  any  judge  authorized  by  this  chapter  to  grant  writs 
of  habeas  corpus  shall  refuse  to  grant  such  writ  when 
legally  applied  for,  every  such  judge  shall  forfeit  to  the 
party  aggrieved  two  thousand  five  hundred  dollars. 

Sec.    1632.   Writ  may  issue  without  application,  when. 
1868-'9,  c.  116,  s.  10. 

Whenever  the  supreme  or  superior  court,  or  any  judge 
of  either,  shall  have  evidence  from  any  judicial  proceed- 
ing before  such  court  or  judge,  that  any  person  within 
this  state  is  illegally  imprisoned  or  restrained  of  his  lib- 


630  HABEAS  COEPUS.  [Chap.  36. 

erty,  it  shall  be  the  duty  of  said  couit  or  judge  to  issue  a 
writ  of  habeas  corjms  for  his  rehef,  although  no  applica- 
tion be  made  for  such  writ. 

In  re  Schcnck,  74—607;  State  v.  Applewhite,  75—229. 

Sec.  1633.  The  return,  and  what  to  contain.    1868-'9,  c. 
116,  s.  11. 

The  pereon  or  officer  on  whom  the  writ  is  served,  must 
make  a  return  thereto  in  writing,  and,  except  where  such 
person  shall  be  a  sworn  public  officer,  and  shall  make  his 
return  in  his  official  capacity,  it  must  be  verified  by  his 
oath.     The  return  must  state  plainly  and  unequivocally — 

(1)  Whether  he  have  or  have  not  the  party  in  his  cus- 
tody or  under  his  power  or  restraint; 

(2)  If  he  have  the  party  in  his  custody  or  power,  or 
under  his  restraint,  the  authority  and  the  cause  of  such 
imprisonment  or  restraint,  setting  forth  the  same  at 
large; 

(3)  If  the  party  be  detained  by  virtue  of  any  writ,  war- 
rant, or  other  Avritten  authority,  a  copy  thereof  shall  be 
annexed  to  the  return;  and  the  original  shall  be  produced 
and  exhibited  on  the  return  of  the  writ  to  the  court  or 
judge,  before  whom  the  same  is  returnable; 

(4)  If  the  person  or  officer  upon  whom  such  writ  is 
seiwed,  shall  have  had  the  party  in  his  power  or  custody, 
or  under  his  restraint,  at  any  time  pj'ior  or  subsequent  to 
the  date  of  the  writ,  but  has  transferred  such  custody  or 
restraint  to  another,  the  return  shall  state  particularly  to 
whom,  at  what  time,  for  what  cause  and  by  what  au- 
thority such  transfer  took  place. 

Sec.  1634.  Notice  to  parties  interested.    1868-'9,  c.  116, 
8.12.    1870-'l,  c.  321,  s.  1. 

When  it  appears  from  the  return  to  the  writ  that  the 
party  named  therein  is  in  custody  on  any  process,  or  by 
reason  of  any  claim  of  right,  under  which  any  other  per- 
son has  an  interest  in  continuing  his  imprisonment  or  re- 
straint, no  order  shall  be  made  for  his  discharge,  until  it 
shall  appear  that  the  person  so  interested  or  his  attorney, 
if  he  have  one,  shall  have  had  reasonable  notice  of  tlie 
f.ime  and  place  at  which  such  writ  is  returnable. 

Sec.  1635.  Notice  to  district  solicitor.    1868-'9,  c.  116, 
s.  13. 

When  it  appears  from  the  return  that  such  party  is  de- 
tained upon  any  criminal  accusation,  the  court  or  judge 
may,  if  he  thinks  proper,  make  no  order  for  the  discharge 


Chap.  36.]  HABEAS  COEPUS.  631 

of  such  party  until  sufficient  notice  of  the  time  and  place 
at  which  the  writ  shall  have  been  returned,  or  shall  be 
made  retiuuable,  be  given  to  the  district  solicitor  of  the 
county  in  which  the  person  prosecuting  the  writ  is  de- 
tained. 

Sec.  1636.  Production  of  the  body.    1868-'9,  c.  116,  S. 

If  the  writ  require  it,  the  officer  or  person  on  whom 
the  same  has  been  served  shall  also  produce  the  body  of 
the  party  in  his  custody  or  power,  according  to  the  com- 
mand of  the  writ,  except  in  the  case  of  the  sickness  of 
such  party,  as  hereinafter  provided. 

Sec.    1637.    Attachment   on   failure   to    obey   the   writ. 
1868-'9,  c.  116,  s.  15. 

If  the  person  or  officer  on  whom  any  writ  of 
habeas  corpus  shall  have  been  duly  served  shall  refuse  or 
neglect  to  obey  the  same,  by  producing  the  body  of  the 
party  named  or  described  therein,  and  by  making  a  full 
and  exphcit  return  thereto,  within  the  time  reqmred,  and 
no  sufficient  excuse  be  shown  for  such  refusal  or  neglect, 
it  shall  be  the  duty  of  the  court  or  judge  before  whom 
the  writ  shall  have  been  made  returnable,  upon  due  proof 
of  the  service  thereof,  forthwith  to  issue  an  attachment 
against  such  person  or  officer,  directed  to  the  sheriff  of 
any  county  within  this  state,  and  commanding  him  forth- 
with to  apprehend  such  person  or  officer  and  bring  him 
immediately  before  such  court  or  judge,  and  on  being  so 
brought  such  person  or  officer  shall  be  committed  to  close 
custody  in  the  jail  of  the  county  where  such  court  or 
judge  may  be,  without  being  allowed  the  liberties  thereof, 
until  sucli  person  or  officer  make  return  to  such  writ  and 
comply  with  any  order  that  may  be  made  by  such  court 
or  judge  in  relation  to  the  party  for  whose  relief  the  writ 
shall  have  been  issued. 

Sec.    1638.  Penalty  for    refusing  attachment.    1870-'l, 
c.  221,  s.  2. 

If  any  judge  shall  wilfully  refuse  to  grant  the  writ  of 
attachment,  as  provided  for  in  the  preceding  section,  he 
shall  be  hable  to  impeachment,  and  moreover  shall  forfeit 
to  the  party  aggrieved  twenty-five  hundred  dollars. 

Sec.  1639.  Where  a  sheriff  fails  to  return.     1868-'9,  c. 
116,  s.  16. 

If  a  sheriff  shall  have  neglected  to  return  the  writ 


632  HABEAS  CORPUS.  [Chap.  36. 

agreeably  to  tlie  command  thereof,  the  attachment  against 
him  may  be  directed  to  the  coroner  or  to  any  other  per- 
son to  be  designated  therein,  who  shall  have  power  to  ex- 
ecute the  same,  and  such  sheriff,  upon  being  brought  up, 
may  be  committed  to  the  jail  of  any  county  other  than 
his  own. 

Sec.  1640.  Precept  to  bring  up  party  detained.    1868-'9, 
c.  llO.s.  17, 

The  court  or  judge,  by  whom  any  such  attachment  may 
be  issued,  may  also  at  the  same  time,  or  afterwards, 
direct  a  precept  to  any  sheriff,  coroner,  or  other  person 
to  be  designated  therein,  commanding  him  to  bring 
forthwith,  before  such  court  or  judge,  the  party, 
wherever  to  be  found,  for  whose  benefit  the  writ  of 
habeas  corpus  has  been  granted. 

Sec.   1641.  Penalty  for  refusing  to   grant  the    precept. 
1870-'l,  c.  221,  s.  3. 

If  any  judge  shall  refuse  to  grant  the  precept  provided 
for  in  the  preceding  section,  he  shall  be  liable  to  impeach- 
ment, and  moreover  shall  forfeit  to  the  party  aggrieved 
twenty-five  hundred  dollars. 

Sec.  1642.  Penalty  for  conniving,  &c.,  at  any  insufficient 
return,  &c.    1870-'l,  c.  221,  s.  4. 

If  any  judge  shall  grant  the  attachment,  or  the  precept, 
and  shall  give  the  officer  or  otlier  person  charged  with  the 
execution  of  the  same  verbal  or  written  instructions  not 
to  execute  the  same,  or  to  make  any  evasive  or  insuffi- 
cient return,  or  any  return  other  than  that  provided  by 
law;  or  shall  connive  at  the  failing  to  make  any  return 
or  any  evasive  or  insufficient  return,  or  any  return  other 
than  that  provided  by  law,  he  shall  be  liable  to  impeach- 
ment, and  moreover  shall  forfeit  to  the  party  aggrieved 
twenty-five  hundred  dollars. 

Sec.  1643.  Power  of  the  county.    1868-'9,  c.  116,  s.  18. 

In  the  execution  of  any  such  attachment,  precept  or 
writ,  the  sheriff,  coroner,  or  other  person  to  whom  it  may 
be  directed,  may  call  to  his  aid  the  power  of  the  county, 
as  in  other  cases. 

Sec.  1644.  Proceedings  on  the  return  of  the  writ.     1868- 
'9,  c.  116,8.  19. 

The  court  or  judge  before  wliom  the  party  is  brought 
on  a  wiit  of  habeas  corpus,  shall,  immediately  after  the 


Chap.  36.]  HABEAS  CORPUS.  633 

return  thereof,  examine  into  the  facts  contained  in  such 
return,  and  into  the  cause  of  the  confinement  or  restraint 
of  such  party,  whether  the  same  shall  have  been  upon 
commitment  for  any  cx-kninal  or  supposed  criminal 
matter  or  not;  and  if  issue  be  taken  upon  the  material 
facts  in  the  return,  or  other  facts  are  alleged  to  show  that 
the  imprisonment  or  detention  is  illegal,  or  that  the  party 
imprisoned  is  entitled  to  his  discharge,  the  court  or  judge 
shall  proceed,  in  a  summary  way,  to  hear  the  allegations 
and  proofs  on  both  sides,  and  to  do  what  to  justice  shall 
appertain  in  delivering,  bailing  or  remanding  such  party. 

Sec.  1645.  Party  to  be   discharged,  when.     1868-'9,  c. 
116,  s.  20. 

If  no  legal  cause  be  shown  for  such  imprisonment  or 
restraint,  or  for  the  continuance  thereof,  the  court  or 
judge  shall  discharge  the  party  from  the  custody  or 
restraint  under  which  he  is  held.  But  if  it  appear  on  the 
return  to  the  writ,  that  the  party  is  in  custody  by  virtue 
of  civil  process  from  any  court  legally  constituted,  or 
issued  by  any  officer  in  the  course  of  judicial  proceedings 
before  him,  authorized  by  law,  such  party  can  be  dis- 
charged only  in  one  of  the  following  cases: 

(1)  Where  the  jurisdiction  of  such  court  or  officer  has 
been  exceeded,  either  as  to  matter,  place,  sum  or  person; 

(2)  Where,  though  the  original  imprisonment  was  law- 
ful, yet  by  some  act,  omission  or  event,  which  has  taken 
place  afterwards,  the  party  has  become  entitled  to  be  dis- 
charged; 

(3)  Where  the  process  is  defective  in  some  matter  of 
substance  required  by  law,  rendering  such  process  void; 

(4)  Where  the  process,  though  in  proper  form,  has  been 
issued  in  a  case  not  allowed  by  law; 

(5)  Where  the  person,  having  the  custody  of  the  party 
under  such  process,  is  not  the  person  empowered  by  law 
to  detain  him; 

(6)  Where  the  process  is  not  authorized  by  any  judg- 
ment, order  or  decree  by  any  coui-t,  nor  by  any  provision 
of  law. 

Sec.  1646.  Party  to  be  remanded,  when.    1868-'9,  c.  116, 
s.  21. 

It  shall  be  the  duty  of  the  court  or  judge  forthwith  to 
lemand  the  party,  if  it  appear  that  he  is  detained  in  cus- 
tody, either, 

(1)  By  virtue  of  process  issued  by  any  court  or  judge  of 


634  HABEAS  COEPUS.  [Chap.  36. 

the  United  States,  in  a  case  where  such  court  or  judge 
has  exclusive  jurisdiction; 

(2)  By  virtue  of  tlie  final  judgment  or  decree  of  any 
competent  court  of  civil  or  criminal  jurisdiction,  or  of 
any  execution  issued  upon  such  judgment  or  decree; 

(3)  For  any  contempt  specially  and  plainly  charged  in 
the  commitment  by  some  court,  officer  or  body,  having 
authority  to  commit  for  the  contempt  so  charged; 

(4)  That  the  time  during  which  such  party  may  be 
legally  detained  has  not  expired. 

In  re  Schenck,  74r— 607. 

Sec.  1G47.  Party  to  be  bailed  or  remanded,  wlien.    18G8- 
'9,  c.  116,  s.  23. 

If  it  appear  that  the  party  has  been  legally  committed 
for  any  criminal  offence,  or  if  it  appear  by  the  testimony 
offered  with  the  return  of  the  writ,  or  upon  the  hearing 
thereof,  that  the  party  is  guilty  of  such  an  offence,  al- 
though the  commitment  be  irregular,  the  court  or  judge 
shall  proceed  to  let  such  party  to  bail,  if  the  case  be  bail- 
able and  good  bail  be  offered;  if  not,  the  court  or  judge 
shall  forthwith  remand  such  party  to  the  custody  or  place 
him  under  the  restraint  from  which  he  was  taken:  Pro 
vided,  the  person  or  officer,  under  whose  custody  or 
restraint  he  was,  be  legally  entitled  thereto;  if  not  so 
entitled  the  court  or  judge  shall  commit  such  party  to  the 
custody  of  the  officer  or  person  legally  entitled  thereto. 

Sec.  1 648.  Proceedings  in  case  of  sickness  of  tlie  party. 
1868-'9,  c.  116,  s.  23. 

Whenever,  from  the  illness  or  infirmity  of  the  person 
directed  to  be  produced  by  a  writ  of  habeas  corpus,  such 
person  cannot,  without  danger,  be  brought  before  the 
court  or  judge,  where  the  writ  is  made  returnable,  the 
party  in  whose  custody  he  is  may  state  the  fact  in  his  re- 
turn to  the  writ;  and  if  the  court  or  judge  be  satisfied  of 
tlie  truth  of  the  allegation  and  the  return  be  otherwise 
sufficient  the  court  or  judge  shall  proceed  to  decide  on 
such  return  and  to  dispose  of  the  matter  in  the  same 
manner  as  if  the  body  had  been  produced. 

Sec.  1640.  Penalty  for  disobedience  to  order  of  discharge. 
1868-'9,  c.  116,  s.  24. 

Obedience  to  a  judgment  or  order  for  the  discharge  of 
a  prisoner  or  person  restrained  of  his  liberty,  pursuant 
to  the  provisions  of  this  chapter,  may  be  enforced  by  the 
court  or  judge  by  attachment  in  the  same  manner  and 


Chap.  36.  J  HABEAS  CORPUS.  635 

with  the  same  effect  as  for  a  neglect  to  make  return  to  a 
writ  of  habeas  corpus;  and  the  person  found  guilty  of 
such  disobedience  shall  forfeit  to  the  party  aggrieved  two 
thousand  five  hundred  dollars,  besides  any  special  dam- 
ages which  such  party  may  have  sustained. 

Sec.  1650.  Officer  not  liable  civilly  for  obedience.    1868- 
'9,  c.  116,  s.  25. 

No  officer  or  other  person  shall  be  liable  to  any  civil 
action  for  obeying  such  judgment  or  order  of  discharge. 

Sec.  165 1.  Penalty  for  committing  for  same  cause.    1868- 
'9,  c.  116,  s.  26. 

No  person  who  has  been  set  at  large  upon  any  writ  of 
habeas  corpus  shall  be  again  imprisoned  or  detained  for 
the  same  cause  by  any  person  whatsoever  other  than  by 
the  legal  order  or  process  of  the  court  wherein  he  shall 
be  bound  by  recognizance  to  appear  or  of  any  other 
court  having  jurisdiction  in  the  case,  under  the  penalty 
of  two  thousand  five  hundred  dollars  to  the  party  ag- 
grieved thereby ;  and  every  officer  or  other  person  who 
shall  knowingly  offend  against  this  section  shall  be  guilty 
of  a  misdemeanor. 

Sec.  1652.  Penalty  for  neglecting  to  obey  the  writ,  or  for 
refusing  copy  of  process.    1868-'9,  c.  116,  s.  27. 

If  any  person,  to  whom  a  writ  of  habeas  corpus  is  di- 
rected, shall  neglect  or  refuse  to  make  due  i-eturn  thereto, 
or  to  bring  the  body  of  the  party  detained  according  to 
the  command  of  the  writ  without  delay;  or  shall  not, 
within  six  hours  after  demand  made  therefor,  deliver  a 
copy  of  the  commitment  or  cause  of  detainer,  such  per- 
son shall,  upon  conviction  by  indictment,  be  fined  one 
thousand  dollars,  or  imprisoned  not  exceeding  twelve 
months,  and  if  such  person  be  an  officer,  shall  moreover 
be  removed  from  office. 

Sec.  1653.  False  return  a  misdemeanor.    1868-'9,  c.  116, 

s.  28. 
Every  person  making  a  false  return  to  a  writ  of  habeas 
corpus,  shall  be  guilty  of  a  misdemeanor. 

Sec.  1654.  Penalty  for  concealing  party.    1868-'9,  c.  116, 
s.  29. 

Any  one  having  in  his  custody,  or  under  his  power, 
any  party,  who,  by  this  chaptei',  would  be  entitled  to  a 
writ  of  habeas  corpus,  or  for  whose  relief  such  writ  shall 


636  HABEAS  CORPUS.  [Chap.  36. 

have  been  issued,  who  shall,  with  intent  to  elude  the 
service  of  such  writ  or  to  avoid  the  effect  thereof,  trans- 
fer the  party  to  the  custody,  or  put  him  under  the  power 
or  control  of  another,  or  shall  conceal  or  change  the  place 
of  his  confinement,  shall  be  guilty  of  a  misdemeanor. 

Sec.  1655.  Aiders  and  abettors.     1868-'9,  c.  116,  s.  30. 

Every  person  who  shall  knowingly  aid  or  abet  in  the 
violation  of  the  preceding  section,  shall  be  guilty  of  a  mis- 
demeanor. 

Sec.  1656.  Writs  returnable,  wben.    1868-'9,  c.  116,  s. 
31. 

Writs  of  habeas  corpus  may  be  made  returnable  at  a 
certain  time,  or  forthwith,  as  the  case  may  require.  If 
the  writ  be  returnable  at  a  certain  time,  such  return  shall 
be  made  and  the  party  shall  be  produced  at  the  time  and 
place  specified  therein. 

Sec.  1657.  By  whom  served,  and  manner  of  service.  1868- 
'9,0.  116,  s.  32. 

The  writ  of  habeas  corpus  may  be  served  by  any  qual- 
ified elector  of  this  state,  thereto  authorized  by  the  court 
or  judge  allowing  the  same.  It  may  be  served  by  de- 
livering the  writ,  or  a  copy  thereof,  to  the  person  to 
whom  it  is  directed;  or,  if  such  person  cannot  be  found, 
by  leaving  it,  or  a  copy,  at  the  jail,  or  other  place  in 
which  the  party  for  whose  relief  it  is  intended  is  confined, 
with  some  under  officer  or  other  person  of  proper  age;  or, 
if  none  such  can  be  found, or  if  the  pereon  attempting  to 
serve  the  writ  be  refused  admittance,  by  affixing  a  copy 
thereof  in  some  conspicuous  place  on  the  outside,  either 
of  the  dwelling  house  of  the  party  to  whom  the  writ  is 
directed,  or  of  the  place  where  the  party  is  confined  for 
whose  relief  it  is  sued  out. 

Sec.  1658.  Persons  committed  for  capital  oflTences,  when 
to  be  tried  or  discharged.    1868-'9,  c.  1 16,  s.  33. 

When  any  person  who  has  been  committed  for  treason 
or  felony,  plainly  and  specially  expressed  in  the  warrant 
of  commitment,  upon  his  prayer  in  open  court  to  be 
brought  to  his  trial,  shall  not  be  indicted  some  time  in 
the  next  term  of  the  superior  or  criminal  court  ensuing 
such  commitment,  the  judge  of  the  court,  upon  notice  in 
open  court  on  the  last  day  of  the  term,  shaU  set  at  liberty 
such  prisoner  upon  bail,  unless  it  appear  upon  oath  that 
the  witnesses  for  the  state  could  not  be  produced  at  the 


Chap.  36.]  HABEAS  CORPUS.  637 

same  term;  and  if  such  prisoner,  upon  his  prayer  as  afore- 
said, shall  not  be  indicted  and  tried  at  the  second  term  of 
the  court,  he  shall  be  discharged  from  his  imprisonment. 

Sec.   1659.  Subpoenas  for  witnesses.    1868-'9,  c.  116,  s. 
34. 

Any  party  to  a  proceeding  on  a  wi'it  of  habeas  corpus 
may  procure  the  attendance  of  witnesses  at  the  hearing, 
by  subpoena,  to  be  issued  by  the  clerk  of  any  superior 
court,  under  the  same  rules,  regulations  and  penalties 
prescribed  by  law  in  other  cases. 

Sec.  1660.  Costs.    1868-'9,  c.  116,  s.  35. 

The  costs  on  a  writ  of  habeas  corpus  may  be  awarded 
at  the  discretion  of  the  court  or  judge  who  shall  hear 
the  same;  and  he  may  direct  what  officer  shall  tax  such 
costs;  and  execution  may  issue  therefor  as  in  other 
cases. 

Sec.  1661.  Custody  and  disposition  of  infants  in  certain 
cases.    1858-'9,  c.  53.    lS68-'9,  c.  116,  s.  36. 

When  a  contest  shall  arise  on  a  wi-it  of  habeas  corpus 
between  any  husband  and  wife,  who  are  hving  in  a  state 
of  separation,  without  being  divorced,  in  respect  of  the 
custody  of  their  children,  the  court  or  judge,  on  the  re- 
turn of  such  writ,  may  award  the  charge  or  custody  of 
the  child  or  children  so  brought  before  it  either  to  the 
husband  or  to  the  wife,  for  such  time,  under  such  regu- 
lations and  restrictions,  and  with  such  provisions  and  di- 
rections as  will,  in  the  opinion  of  such  court  or  judge, 
best  promote  the  interest  and  welfare  of  the  children. 
At  any  time  after  the  making  of  such  orders  the  court 
or  judge  may,  on  good  cause  shown,  annul,  vary  or  mod- 
ify the  same. 

Thompson  v.  Thompson,  72—33. 

Sec.   1662.  When  custody  of  children  contested,  either 
party  may  appeal.    1858-'9,  c.  53,  s.  3. 

In  all  cases  of  habeas  corpus,  where  a  contest  shall 
arise  in  respect  to  the  custody  of  minor  children,  either 
party  may  appeal  to  the  supreme  court  from  the  final 
judgment. 

Musgrove  v.  Kornegay,  7  Jon.,  71. 

Sec.  1663.  Habeas  corpus  ad  testificandum.    1868-'9,  c. 
116,  s.  37. 

Every  court  of  record  shall  have  power,  upon  the  ap- 


638  HABEAS  CORPUS.  [Chap.  36 

plication  of  any  party  to  any  suit  or  proceeding,  civil  or 
crimiual.  pending  in  such  court,  to  issue  a  writ  of  habeas 
corpus,  for  the  purpose  of  bringing  before  the  said  court 
any  prisoner,  who  may  be  detained  in  any  jail  or  prison 
within  the  state,  for  any  cause,  except  such  prisoner  be 
under  sentence  for  a  felony,  to  be  examined  as  a  witness 
m  such  suit  or  proceeding,  in  behalf  of  the  party  making 
the  application. 

State  V.  Adair,  68—68;  Harris,  exparte,  73— G5. 

Sec.   1CG4.     Justices  of  the  peace   and  superior   court 
clerks.     1868-'t>,  c.  1 16,  s.  38. 

-Such  writ  of  habeas  corpus  may  be  issued  by  any  jus- 
tice of  the  peace  or  clerk  of  the  superior  court  upon  ap- 
plication as  provided  in  the  preceding  section,  to  bring 
any  person  confined  in  the  jail  or  prison  of  the  same 
county  where  such  justice  or  clerk  may  reside,  to  be  ex- 
amined as  a  witness  before  such  justice  or  clerk.  And  in 
cases  where  the  testimony  of  any  prisoner  is  needed  in  a 
proceeding  before  a  justice  of  the  peace,  or  a  clerk,  and 
such  person  be  confined  in  a  county  in  which  such  justice 
or  clerk  does  not  reside,  appUcation  for  habeas  corpus  to 
testify  may  be  made  to  any  judge  of  the  supreme  or 
superior  court. 

Sec.  1665.    Application,  what  to  contain.      1868-'9,   c. 
116,  s.  39. 

The  application  for  the  writ  shall  be  made  by  the  party 
to  the  suit  or  proceeding  in  which  the  writ  is  requii-ed,  or 
by  his  agent  or  attorney.  It  must  be  verified  by  the  ap- 
plicant, and  shall  state: 

(1)  The  title  and  nature  of  the  suit  or  proceeding  in 
regard  to  which  the  testimony  of  such  prisoner  is  de- 
sired; 

(2)  That  the  testimony  of  such  prisoner  is  material  and 
necessary  to  such  party  on  the  trial  or  hearing  of  such 
suit  or  proceeding,  as  he  is  advised  by  counsel  and  verily 
believes. 

Sec.  1666.    Writ,  Low  and  by  whom  served.    1868-'9,  c. 
110,  s.  40. 

The  writ  of  habeas  corpus  to  testify  shall  be  served  by 
the  same  pei-son,  and  in  like  manner  in  all  respects,  and 
enforced  by  the  court  or  officer  issuing  the  same  as  pre- 
scribed in  this  chapter  for  the  service  and  enforcement  of 
the  writ  of  habeas  corpus  cum  causa. 


Chap.  37.]  IDIOTS,  ETC.  639 

Sec.  1667.    Fees  and  bond  on  service.    1868-'9,  c.  116, 
s.  41. 

The  service  of  the  writ  shall  not  be  complete,  however, 
unless  the  applicant  for  the  same  shall  tender  to  the  per- 
son in  whose  custody  the  prisoner  may  be,  if  such  person 
be  a  sheriff,  coroner,  constable  or  marshal,  the  fees  and 
expenses  allowed  by  law  for  bringing  such  prisoner,  nor 
unless  he  shall  also  give  bond,  with  sufficient  security,  to 
such  sheriff,  coroner,  constable  or  mai-shal,  as  the  case 
may  be,  conditioned  that  such  applicant  will  pay  the 
charges  of  carrying  back  such  prisoner. 

Sec.  1668.    Duty  of  officers.    1868-'9,  C.  116,  s.  43. 

It  shaU  be  the  duty  of  the  officer  to  whom  the  writ  is 
delivered  or  upon  whom  it  is  served,  whether  such  writ 
be  directed  to  him  or  not,  upon  payment  or  tender  of  the 
charges  allowed  by  law,  and  the  delivery  or  tender  of  the 
bond  herein  prescribed,  to  obey  and  return  such  writ  ac- 
cording to  the  exigency  thereof  upon  pain,  on  refusal  or 
neglect,  to  foifeit  to  the  party  on  whose  application  the 
same  shall  have  been  issued  the  sum  of  five  hundred 
dollars. 

Sec.  1669.    Prisoner  to  be  remanded.    1868-'9,  c.  116, 
s.  43.  ■       ,  , 

After  having  testified  the  prisoner  shall  be  remanded  to 
the  prison  from  which  he  was  taken. 


CHAPTER  THIRTY-SEVEN. 
IDIOTS,  LUNATICS  AND  INEBEIATES. 


Section. 

1670.  Inquisition  of  lunacy. 

1671.  Wlio  deemed  an  inebriate. 

1673.  Property  of  inebriate  lo  be  re- 
stored him  upon  bis  reforma- 
tion. 

1673.  How  to  proceed  in  case  of  per- 
sons confined  in  lunatic  asy- 
lum. 


1674.  Sale  of  their  estates.  I  court, 


Sfxtion. 

1675.  How  and  for  what  purpose 
clerks  may  order  a  sale  of  their 
estates;  heirs  and  next  of  kin 
to  be  parties;  proceeds,  how 
applied  and  secured;  how  de- 
scend, &c. 

1676.  Eslates  without  guardian,  man- 
aged    by     clerk    of    superior 


640 


IDIOTS,  ETC. 


[Chap.  37. 


Section. 

1677.  Surplus  income  of  insane  per- 
sons may  be  advanced  in  cer- 
tain cases  to  next  of  kin. 

Ifi78.  Purp'oses  for  which  such  ad- 
vancements may  be  made;  to 
whom  paid. 

1679.  All  persons  interested  made 
parlies. 

1680.  Rule  to  be  observed  by  the 
clerk. 

1681.  Clerk  may  select  the  persons 
to  be  advanced. 

1682.  Advancements  secured  against 
waste. 


Section. 

1683.  Appeal  and  removal  to  superior 
court  allowed. 

1684.  Of  what  kind  of  insane  persons 
advancements  to  be  made  of 
their  estates. 

1685.  Decrees  for  advancements  sus- 
pended on  restoration  to  san- 
ity. 

1686.  What  may  be  done  when  luna- 
tic/eme  cmert  is  abandoned  by 
her  husband. 

1687.  Real  estate  belonging  to  the 
wife  of  a  lunatic,  how  sold. 


Sec.  1670.  Inquisition  of  lunacy.    C.  C.  P.,  s.  473. 

Any  person,  in  behalf  of  one  who  is  deemed  an  idiot, 
inebriate,  or  lunatic,  or  incompetent  from  want  of  under- 
standing to  manage  his  own  affairs  by  reason  of  the  ex- 
cessive use  of  intoxicating  drinks,  or  other  cause,  may 
file  a  petition  before  the  clerk  of  the  superior  court  of  the 
county  where  such  supposed  idiot,  inebriate  or  lunatic 
resides,  setting  forth  the  facts,  duly  verified  by  the  oath 
of  the  petitioner;  whereupon  such  clerk  shall  issue  an 
order,  upon  notice  to  the  supposed  idiot,  inebiiate  or  lu- 
natic, to  the  sheriff  of  the  county,  commanding  him  to 
summon  a  jury  of  twelve  men  to  inquire  into  the  state 
of  sucn  supposed  idiot,  inebriate  or  lunatic.  The  jury 
shall  make  return  of  their  proceedings  under  their  bauds 
to  the  clerk,  who  shall  file  and  record  the  same;  and  he 
shall  proceed  to  appoint  a  guardian  of  any  person  so 
found  to  be  an  idiot,  inebriate  or  lunatic,  by  inquisition 
of  a  jury,  as  in  cases  of  orphans. 

Armstrong  v.  Arrington,  1  Hawks,  11;  Spack  v.  Long,  llred.  Eq.,  426; 
Bethea  v.  McLennon,  1  Ired.,  523;  Brooks  v.  Brooks,  3  Ircd.,  389;  Christ- 
mas V.  Mitchell,  3  Ired.  Eq.,  535;  Rippy  v.  Gant,  4  Ired.  Eq.,  443;  Patton 
V.  Thompson,  2  Jon.  Eq.,  411 ;  Parker  v.  Davis,  8  Jon.,  460. 

Sec.  1671.  Who  deemed  an  inebriate.  1879,  c.  329,  s.  1. 

Any  person  who  habitually,  whether  continuously  or 
periodically,  indulges  in  the  use  of  intoxicating  liquors  to 
such  an  extent  as  to  stupefy  his  mind  and  to  render  him 
incompetent  to  transact  ordinary  business  with  safety  to 
his  estate,  shall  be  deemed  an  inebriate  within  the  mean- 
ing of  this  chapter:  Provided,  the  habit  of  so  indulging 
in  such  use  shall  have  been  at  the  time  of  inquisition  of 
fit  least  one  year's  standing. 


Chap.  37.]  IDIOTS,  ETC.  641 

Sec.  1672.  Property  of  inebriate  to  be  restored  him  upon 
his  reformation.    1879,  c.  339,  s.  4. 

Whenever  an  inebriate  for  whom  a  guardian  shall  have 
been  appointed  shall  become  a  sober  person,  and  capable 
of  managing  his  own  affairs,  the  clerk  who  appointed 
such  guardian  is  authorized  to  remove  him  and  restore  to 
said  inebriate  all  his  property,  to  manage  and  control  in 
as  full  and  ample  a  manner  as  he  held  the  same  prior  to 
his  having  been  adjudicated  an  inebriate. 

Sec.  1673.  How  to  proceed   in  case  of  person   coniined 
in  lunatic  asylum.    1860-'l,  c.  23. 

If  any  person  be  confined  in  any  asylum  for  lunatics 
and  insane  persons,  the  certificate  of  the  superintendent 
of  such  asylum  declaring  such  person  to  be  of  insane 
mind  and  memory,  which  certificate  shall  be  sworn  to 
and  subscribed  before  the  clerk  of  the  superior  court  of 
the  county  in  which  such  asylum  is  situated,  and  certified 
under  the  seal  of  court  shall  be  sufficient  evidence  to 
authorize  the  clerk  to  appoint  a  guardian  for  such  idiot, 
lunatic  or  person  of  insane  memory. 

Sec.  1674.  Sale  of  their  estate.    K.  C,  c.  57,  s.  4.    1801, 
c.  589. 

Whenever  it  shall  appear  to  any  clerk  of  the  superior 
court  by  report  of  the  guardian  of  any  idiot,  inebriate  or 
lunatic,  that  his  personal  estate  has  been  exhausted,  or 
is  insufficient  for  his  support,  and  that  he  is  likely  to 
become  chargeable  on  the  county,  the  clerk  may  make 
an  order  for  the  sale  or  renting  of  his  personal  or  real 
estate,  or  any  part  thereof,  in  such  manner  and  upon  such 
terms  as  he  may  deem  advisable.  Such  order  shall 
specify  particularly  the  property  thus  to  be  disposed  of, 
with  the  terms  of  renting  or  sale,  and  shall  be  entered  at 
length  on  the  records  of  the  court;  and  all  sales  and 
rentings  made  under  this  section,  shall  be  valid  to  convey 
the  interest  and  estate  directed  to  be  sold,  and  the  title 
thereof  shall  be  conveyed  by  such  person  as  the  clerk 
may  appoint  on  confirming  the  sale;  or  the  clerk  may 
direct  the  guardian  to  file  his  petition  for  such  purpose. 

Sec.  1675.  How  and  for  what  purpose  clerks  may  order 
a  sale  of  their  estates;  heirs  and  next  of  kin  to  be 
parties;  proceeds,  how  applied  and  secured;  how 
descend,  &c.  K.  C,  c.  57,  s.  5.  1773,  c.  100,  s.  3. 
1809,  c.  766.  1816,  c.  907. 
Whenever  it  shall  appear  to  the  clei-k,   upon  the  peti 


642  IDIOTS,  ETC.  [Chap.  3T. 

tion  of  the  guardian  of  any  idiot,  inebriate  or  lunatic, 
that  a  sale  of  any  part  of  his  real  or  personal  estate  is 
necessary  for  his  maintenance,  or  for  the  discharge  of 
debts  unavoidably  incurred  for  his  maintenance;  or,  when- 
ever the  clerk  shall  be  satisfied  that  the  iutei-est  of  the 
idiot,  inebriate  or  lunatic  would  be  materially  and  essen- 
tially promoted  by  the  sale  of  any  part  of  such  estate; 
or  whenever  any  part  of  his  real  estate  is  required  for 
public  purposes,  the  clerk  may  order  a  sale  thereof  to  be 
made  by  such  person,  in  such  way  and  on  such  terms 
as  he  shall  adjudge:  Provided,  that  the  clerk,  if  it  be 
deemed  proper,  may  direct  to  be  made  parties  to  such 
petition  the  next  of  kin  or  presumptive  heirs  of  such 
non-sane  person  or  inebriate.  And  if  on  the  hearing 
the  clerk  shall  oi-der  such  sale,  the  same  shall  be  made 
and  the  proceeds  applied  and  secured,  and  shall  de- 
scend and  be  distributed  in  like  manner  as  is  provided 
for  the  sale  of  infants'  estates  decreed  in  like  cases  to  be 
sold  on  application  of  their  guardians,  as  directed  in  the 
chapter  entitled  "  Guardian  and  Ward." 

Allison  V.  Campbell,  1  D.  &  B.  Eq.,  153;  Lalliam  v.  Wiswall,  3  Ircd. 
Eq.,  S94;  In  tbe  matter  of  Latham,  4Irid.  Eq.,  231;  'L^xX'ha.m  ex  parte,  6Ired. 
Eq.,  406;  Howard  v.  Thompson,  8  Ired.,  367;  Blake  v.  Respass,  77—193; 
Smith  V.  Pipldn,  79—569;  Riggan  v.  Green,  80—126;  Adams  v.  Tlionias, 
81—296;  Adams  V.  Thomas,  83—521. 

Sec.  1676.  Estates  without  (i^uardian  managed  by  clerk  of 
the  superior  court.    K.  C,  c.  57,  s.  6.  1846,  c.  43,  s.  1. 

Whenever  any  person  is  declared  to  be  of  nonsaue  mind 
or  inebriate,  and  for  whom  no  suitable  pereon  will  act  as 
guardian,  the  clerk  shall  secure  the  estate  of  such  person 
according  to  the  law  relating  to  orphans  whose  guardians 
have  been  removed. 

Sec.  1677.  Suriilus  income  of  insane  persons  may  be  ad- 
vanced in  cei-tain  cases  to  next  of  liin.  R.  C,  c.  57,  s.  9. 

Whenever  any  nonsane  person,  of  full  age,  and  not 
having  made  a  valid  will,  shall  have  children  or  grand- 
children, (such  grandchildren  being  the  issue  of  a  deceased 
child,)  and  shall  be  possessed  of  an  estate,  real  or  personal, 
whose  annual  income  shall  be  more  than  sufficient  abun- 
dantly and  amply  to  supjiort  himself,  and  to  support, 
maintain  and  educate  the  inembers  of  his  family,  with 
all  the  necessaries  and  suitable  comforts  of  life,  it  may 
be  lawful  for  the  clerk  of  the  superior  court  for  the 
county  in  which  such  person  shall  have  liis  residence  to 
order  from  time  to  time,  and  so  often  as  may  be  judged 


Chap.  37.]  IDIOTS,  ETC.  643 

expedient,  that  fit  and  proper  advancements  be  made, 
out  of  the  surplus  of  such  income,  to  any  such  child,  or 
grandchild,  not  beius;  a  member  of  his  family  and  en- 
titled to  be  supported,  educated  and  maintained  out  of 
the  estate  of  such  person. 


Sec.  1678.  Purposes  for  which  such  advancements  may 
be  made;  to  whom  paid.  K.  C,  c.  57,  s.  10. 

Such  advancements  shall  be  ordered  only  for  the  better 
promotion  in  life  of  such  as  are  of  age,  or  mari'ied,  and 
for  the  maintenance,  support  and  education  of  such  as 
are  under  the  age  of  twenty-one  years  and  unmarried; 
and  in  all  cases,  the  sums  oidered  shall  be  paid  to  such 
persons  as,  in  the  opinion  of  the  clerk,  will  most  effec- 
tually execute  the  purpose  of  the  advancement :  Pro- 
vided, that,  in  case  the  child,  or  grandchild,  be  a  feme 
covert,  the  sum  advanced  shall  be  paid  or  secured  to  her, 
for  her  sole  and  separate  use. 


Sec.  1679.  All  persons  interested  made  parties.    K.  C,  c. 
57,s.  11. 

In  every  application  for  such  advancements,  the  guard- 
ian of  the  nonsane  person,  and  all  such  other  persons 
shall  be  parties,  as  would  at  that  time  be  entitled  to  a 
distributive  share  of  his  estate,  if  he  were  then  dead. 


Sec.  1680.  Rule  to  be  observed  by  the  clerk.    R.  C,  c.  57, 
s.  12. 

The  clerk  in  ordering  such  advancements  shall  as  far 
as  practicable  so  order  the  same,  as  that,  on  the  death  of 
the  nonsane  person,  his  estate  shall  be  distributed  among 
his  distributees  in  the  same  equal  manner,  as  if  the  ad- 
vancements had  been  made  by  the  pei'son  himself;  and 
on  his  death,  ever}^  sum  advanced  to  a  child,  or  grand- 
child, shall  be  an  advancement,  and  shall  bear  interest 
from  the  time  it  may  be  received. 


Sec.  1681.  Clerk  may  select  the  persons  to  be  advanced. 
R.  C,  c.  57,  s.  13. 

When  the  surplus  aforesaid  shall  not  be  sufficient  to 
make  distribution  among  all  the  parties,  the  clerk  may 
select  and  decree  advancements  to  such  of  them  as  may 
most  need  the  same,  and  may  apportion  the  sum  decreed 
in  such  amounts  as  shaU  be  expedient  and  proper. 


644  IDIOTS,  ETC.  [Chap.  37. 

Sec.  1682.  Advancements  secured  against  waste.    R.  C, 
c.  57,  s.  14. 

It  shall  be  the  duty  of  the  clerk  to  withhold  advance- 
ments from  such  persons  as  will  probably  waste  them,  or 
so  to  secure  the  same  when  they  may  have  families,  that 
it  may  be  applied  to  their  support  and  comfort,  but  any 
sum  so  advanced  shall  be  regarded  as  an  advancement  to 
such  persons. 

Sec.  1683.  Appeal  and  removal  to  superior  court  allowed. 
R.  C,  c.  57,  s.  15. 

Any  person  made  a  party  may  appeal  from  any  order 
of  the  clerk;  or  may,  when  the  pleadings  are  finished, 
require  that  all  further  proceedings  shall  be  had  in  the 
superior  court. 

Sec.  1684.  Of  what  kind  of  insane  persons  advancements 
to  be  made  of  their  estates.    R.  C,  c.  57,  s.  16. 

No  such  application  shall  be  made  under  this  chapter 
but  in  cases  ot  such  permanent  and  continued  insanity, 
as  that  the  nonsane  person  shall  be  judged  by  the  clerk 
to  be  incapable,  notwithstanding  any  lucid  intervals,  to 
make  advancements  with  prudence  and  discretion. 

Sec.  1685.  Decrees  for  advancements  suspended  on  resto- 
ration to  sanity.    R.  C,  c.  57,  s.  17. 

Upon  such  insane  person  being  restored  to  sanity,  every 
order  made  for  advancements  shall  cease  to  be  further 
executed,  and  his  estate  shall  be  discharged  of  the  same. 

Sec.  1686.  What  may  be  done  when  lunatic  feme  covert  is 
abandoned  by  her  husband.    1858-'9,  c.  52,  s.  1. 

Whenever  ixnj  feme  covert  lunatic  shall  be  abandoned 
by  her  husband,  she  may,  by  her  guardian,  or  next  friend 
in  case  there  be  no  guardian,  apply  to  the  clerk  of 
the  supei'ior  court  for  support  and  maintenance,  which 
the  clerk  may  decree  as  in  cases  of  alimony,  out  of  any 
property  or  estate  of  her  husband. 

Sec.  1687.  Real  Estate  belonging  to  the  wife  of  a  lunatic, 
how  sold.  1881,  c.  361. 
Whei'e  the  wife  of  a  lunatic  owns  in  her  own  right 
real  estate,  the  sale  of  which  will  promote  her  interest,  a 
sale  of  the  same  may  be  made  upon  the  order  of  the 
clerk  of  the  superior  court  of  the  county  where  the  land 
lies,  upon  the  petition  by  the  wife  of  said  lunatic  and  the 


Chap.  38.]  INTERNAL  IMPROVEMENTS.  645 

guardian  of  the  lunatic  husband,  and  the  proceeds  of  said 
sale  shall  be  paid  to  the  wife  of  said  lunatic. 


CHAPTER  THIRTY-EIGHT. 
INTERNAL  IMPEOVEMENTS. 


Section. 

1688.  Board  of  internal  impvove- 
mcT.ts,  who:  corporate  name. 

1689.  Sessions  of  board  and  pay  of 
members  and  secretary. 

1690.  Board  may  malce  rules  and  by- 
laws. 

1691.  Board  to  have  charge  of  state's 
interest  in  railroads,  canals, 
&c. 

1693.  To  keep  record  of  proceedings 
and  report  to  the  general  as- 
sembly. 

(1)  Condition  of  liuildings,  le- 
pairs,  &c. 

(3)  Condition  of  railroads, canals, 
&c. 

(3)  Character  of  state's  interest. 

(4)  Financial  condition  of  rail- 
roads, &c. 

(5)  Extent,  capacity  and  liiisi- 
ness. 

(6)  Names  of  all  persons  failing 
to  report. 

1693.  Presidents  of  railroads,  &c.. 
to  report  to  board;  report, 
what  to  contain;  penalty. 

1694.  Funds  of  board  deposited  in 
banks. 

1695.  State  treasurer  to  keep  account 
of  bonds;  board  to  examine 
them  yearly;  clerk  to  aid 
treasurer;  his  compensation. 

1696.  Du*y  of  board  in  making  con- 
tracts. 


Section 

1G97.  State  to  be  stockholder  in  com- 
panies to  the  amount  ad- 
vanced. 

1698.  Tiailroad  and  other  compa- 
nies may  enter  on  lands  to 
build  their  works,  &c. 

1699.  Cannot  agree,  proceedings  to 
assess  damages. 

1700.  Report  of  commissioners, 
what  to  contain. 

1701.  Dwelling  hou.ses,  &c..  not  to 
be  condemned. 

1703.  Company  may  take  material 
from  adjacent  lands. 

1703.  Who  to  assess  value. 

1704.  Proceedings  to    value. 

1705.  Justice  may  administer  oaths. 

1706.  Appeal  allowed. 

1707.  Width  of  land  condemned  for 
railroads. 

1708.  Widtli  of  land  for  plank- 
roads,  canals,  &c. 

1709.  Quantity  condemned  for  sta- 
tion or  depot. 

1710.  Railroad,  &c.,  crossing  other 
roads,  not  to  obstruct  them. 

1711.  Companj'  may  turn  roads,  &(•. 
1713.  Damages  allowed  owners  on 

whose  lands  roads  are  turned. 

1713.  New  roads  made  good  as  for- 
mer ones. 

1714.  Incorporated  companies  to 
furnish  board  with  maps,  &c., 
of  improvemeuls. 


646 


INTERNAL  IMPROVEMENTS.   [Chap.  38. 


Section. 

1715.  Railroads  and  other  compa- 
nies to  keep  account  of  pro- 
duce carried,  and  to  repoit  to 
governor. 

1716.  Commissioners  and  freehold- 
ers paid;  costs  paid  by  com- 
pany except  in  certain  cases. 

1717.  No  railroad,  plank-road,  &c.. 
to  be  established  but  bylaw; 
penalty  and  misdemeanor 
therefor. 

1718.  Board  to  appoint  state  proxies. 


Section. 

1719.  Governor  authorized  to  have 
the  affairs  of  railroads  in 
which  (he  slate  has  an  inter- 
est investigated  by  members 
of  board  of  internal  improve- 
ments. 

1720.  Authority  to  administer  oaths, 
&c. 

1721.  Sberiff  to  execute  writs  issued 
by  board ;  penalty  for  failure 
or  refusal  to  obey  summons 
or  answer  questions. 


Sec.  1688.  Board  of  internal  improvements,  wlio;  corpor- 
atename.  R.  C,  c.  61,  s.  1.  1819,  c.  989, s.  3.  1836, 
c.  22,  s.  2.     1874-'5,  cc.  83,  202. 

The  president  and  directors  of  the  board  of  internal 
improvements  shall  consist  of  the  governor  of  the  state, 
who  shall,  ex  officio,  be  president  thereof,  and  of  two 
commissioners  to  be  appointed  biennially  by  the  gover- 
nor, with  the  advice  of  the  senate;  any  two  of  whom 
shall  constitute  a  board  for  the  transaction  of  business; 
and  in  case  of  vacancies  occurring  in  the  board,  the  same 
shall  be  filled  by  the  other  members.  The  governor  and 
said  members  shall  be  a  corporate  body,  under  the  name 
and  style  of  "the  president  and  directors  of  the  board  of 
internal  improvements,"  and  shall  have  all  the  rights, 
powers,  and  privileges  of  a  corporation  which  may  be  nec- 
essary to  enable  it  to  discharge  the  duties  imposed  on  it 
and  no  more. 


Sec.  1689.  Sessions  of  board,  and  pay  of  members  and 
secretary.  K.  C,  c.  61,  s.  2.  1819,  c.  989,  s.  7.  1836, 
c.  22,  s.  4.     1874-'5,  cc.  83,  202. 

The  board  may  hold  their  sessions  whenever  and  where- 
ever  the  governor  may  direct;  may  appoint  a  secretary 
to  record  their  proceedings,  who  shall  receive  three  dol- 
lars for  each  day  the  board  shall  be  in  session;  and  the 
members  shall  receive,  each,  three  dollars  per  day,  and 
their  traveling  expenses,  for  the  time  they  may  be  em- 
ployed in  the  public  service. 

Sec.  1690.  Board  may  make  rules  and  by-laws.  R,  C,  c. 
61,  s.  3.     1819,  c.  989,  s.  9.     1874-'5,  cc.  83,  202. 

The  board  may  make  such  rules  for  the  regulation  of 
their  proceedings,  and  all  nece.'^sary  by-laws,  rules,  and 


Chap.  38.]   INTERNAL  IMPROVEMENTS.  647 

regulations  for  the  better  ordering  of  the  conduct  of  their 
officers,  agents,  and  servants,  as  to  them  shall  seem  ex- 
pedient, not  inconsistent  with  the  laws  of  the  state. 

Sec.  1691.  Board  to  have  charge  of  state's  interest  in 
railroads,  canals,  &c.  1868-'9,  c.  270.  s.  97.  1774:-'5, 
c.  83. 

The  board  shall  have  charge  of  all  the  state's  interest 
in  all  railroads,  canals  and  other  works  of  internal  im- 
provement, and  also,  all  public  buildings,  which  are  the 
property  of  the  state. 

See.  1692.  To  keep  record  of  all  proceedings,  and  report 
to  the  general  assembly,  (1)  condition  of  buildings; 
(2)  condition  of  railroads,  canals,  &c.;  (3)  character  of 
state's  intei-est;   (4)  financial  condition  of  railroads, 
&c.;  (5)  extent,  capacity  and  business;  (6)  names  of  all 
persons  failing  to  report.    K.  C,  c.  61,  s.  4.    1819,  c. 
989,  s.  12.    1868-'9,  c.  270,  s.  98.     1874-'5,  cc.  83, 
202,  s.  3. 
The  board  shall  keep  a  fair  and  true  record  of  all  their 
proceedings,  which  shall,  at  all  times,  be  open  to  the  in- 
spection of  the  members  of -the  general  assembly  and 
others  interested  therein. 

(1)  The  '-ondition  of  all  pubhc  buildings  in  their  charge, 
repairs  which  have  been  made  since  the  last  report,  the 
repairs  or  modifications  which  they  deem  necessary,  with 
their  estimates  for  the  same,  and  the  expenditure  on  each 
during  the  year  past. 

(2)  The  condition  of  aU  railroads,  canals,  or  other 
works  of  internal  improvement,  owned  or  operated  ex- 
clusively by  the  state,  and  they  shall  at  the  same  time  sug- 
gest such  improvement,  enlargement  or  extension  of  such 
work  as  they  shall  deem  proper,  and  such  new  works  of 
similar  nature  as  shall  seem  to  them  to  be  demanded  by 
the  growth  of  trade  or  the  general  prosperity  of  the 
state. 

(3)  The  amount,  condition  and  character  of  the  state's 
interest  m  other  roads,  canals  or  other  works  of  internal 
improvement  in  which  the  state  has  taken  stock,  to 
which  she  has  loaned  money,  or  whose  bonds  she  holds 
as  security. 

(4)  The  condition  of  such  roads  or  other  corporate 
bodies,  as  are  referred  to  in  the  previous  section,  in  de- 
tail, giving  their  entiie  financial  condition,  the  amount 
and  market  value  of  the  stock,  receipts  and  disburse- 
ments for  the  previous  year  or  since  the  last  report.   The 


648  INTERNAL  IMPROVEMENTS.    [Chap.  38 

amount  of  real  and  personal  property  of  such  corpora- 
tions, its  estimated  value,  and  such  suggestions  with  re- 
gard to  the  state's  interest  in  the  same  as  may  to  them 
seem  warranted  by  the  status  of  the  corporation. 

(5)  The  condition,  extent,  capacity  and  business  of  all 
other  railroads  in  this  state  in  tabular  form,  as  provided 
in  the  succeeding  section.  To  recommend  such  legisla- 
tion as  they  may  deem  expedient  in  regard  to  any  or  all 
of  the  above  matters. 

[6)  And  also  the  names  of  all  persons,  failing  or  refus- 
ing to  report,  as  required  by  the  succeeding  section;  and 
this  report  the  governor  shall  transmit  to  the  general  as- 
sembly with  his  message. 

Sec.  1693.  President  of  railroads,  &c.,  to  report  to  board; 
report,  what  to  contain,  penalty.  1868-'9,  e.  270,  s. 
100.     1874-'5,  c.  203,  s.  2. 

Every  president  or  other  chief  officer  of  every  railroad, 
canal  or  other  public  work  of  internal  improvement  in 
which  the  state  owns  an  interest  shall,  on  or  before  the 
first  day  of  October  in  each  year,  make  or  cause  to  be 
made  to  the  board  of  internal  improvements  a  written 
report  of  his  company  for  that  year,  showing 

{!)  Number  of  shares  of  stock  owned  by  the  state. 

(2)  Number  of  shares  of  stock  owned  otherwise. 

(3)  Face  value  of  each  of  said  shares. 

(4)  Market  value  of  each  of  said  shares. 

(5)  Amount  of  "bonded"  debt  and  for  what  purpose 
contracted. 

(6)  Amount  of  other  debt  and  how  incurred. 

(7)  Has  intei'est  on  bonded  debt  been  punctually  paid  as 
agreed;  if  not,  how  much  is  in  arrears. 

(8)  Amount  of  "gross  receipts"  for  past  year  and  from 
what  sources  derived. 

(9)  An  itemized  account  of  expenditures  for  past  year. 

(10)  Any  lease  of  property  of  said  company,  or  any 
part  thereof,  to  whom  made,  for  what  consideration,  and 
for  what  length  of  time. 

(11)  Suits  at  law  pending  against  his  company  concern- 
ing its  bonded  debt,  or  in  which  title  to  whole  or  any 
pait  of  said  road  or  canal  is  concerned. 

(12)  Any  sales  of  stock  owned  by  the  state,  by  whose 
order  made,  and  disposition  of  the  proceeds. 

Any  pereon  failing  to  report  as  required  by  this  section 
shall  be  guilty  of  a  misdemeanor,  and  on  conviction  be- 
fore any  judge  of  the  superior  or  criminal  court  of  this 
state,  be  fined  not  less  than  one  nor  more  than  five  thou- 


Chap.  38.]  INTERNAL  IMPROVEMENTS.  649 

sand  dollars,  and  imprisoned  not  less  than  one  nor  more 
than  five  j^ears  at  hard  labor  in  the  penitentiary;  and  it 
shall  be  the  duty  of  the  attorney  general  to  bring  suit 
against  all  pei-sons  so  failing  to  report  in  the  superior 
court  of  Wake  county  on  application  of  board  of  in- 
ternal improvements. 

Sec.  1694.  Funds  of  board  deposited  in  banks.  R.  C,  c. 
CI,  s.  5.     1836,  c.  32,  s.  5.     1874-'5,  c.  83. 

All  the  moneys  which  may  be  appropriated  to  the  fund 
for  internal  improvement,  unless  otherwise  ordered,  shall 
be  deposited  in  the  banks  of  the  state,  to  the  credit  of 
the  treasurer,  subject  to  the  orders  of  the  board, 
certified  by  the  secretaiy,  and  countersigned  by  the 
president. 

Sec.  1695.  State  treasurer  to  keep  account  of  bonds; 
board  to  examine  them  yearly;  clerk  to  aid  treasurer; 
bis  compensation.  K.  C,  c.  61,  s.  6.  1819,  c.  989,  s. 
10.    1836,  c.  22,  s.  4.    1874-'5,  c.  83. 

The  treasurer  shall  keep  an  account  of  all  disbursements, 
and  shall  render  an  account  thereof  to  the  general  assem- 
bly when  he  makes  his  biennial  report  of  the  ordinary 
revenue.  Once  in  every  year  the  board  shall  appoint  a 
committee  of  their  body  to  examine  the  accounts  of  dis- 
bursements made  during  the  year,  and  compare  the  same 
with  the  treasurer's  books  and  the  certificates  authoriz- 
ing the  payment  of  money.  And  the  treasurer  may  em- 
ploy a  clerk  at  three  dollars  per  day  for  the  time  he 
may  be  engaged  in  making  such  accounts:  Provided, 
that  his  compensation  shall  not  exceed  five  hundred  dol- 
lars a  year. 

Sec.  1696.  Duty  of  board  in  making  contracts.  K.  C,  c. 
61,  s.  7.     1825,  c.  1296.     1874-'5,  c.  83. 

Whenever  the  general  assembly  shall  direct  any  public 
improvement,  the  board  shall  let  the  same  out  by  con- 
tract, and  take  fiom  the  contractor  a  bond  with  sufficient 
security,  payable  to  the  state  of  North  Carohnain  double 
the  sum  paid  or  contracted  to  be  paid,  with  the  condition 
that  he  will  faithfully  perform  his  contract  according  to 
the  plans  or  specifications  agreed  on. 

Sec.  1697.  State  to  be  stockholder  in  companies  to  the 
amount  advanced.  K.  C,  c.  61,  s.  8.  1819,  c.  989,  s. 
12.     1874-'5,  c.  83. 

Whenever  an  appropriation  shall  be  made  by  the  state 
28 


650  INTERNAL  IMPROVEMENTS.    [Chap.  38. 

to  any  work  of  intei-nal  improvement,  conducted  by  a 
corporation,  the  state  shall  be  considered,  unless  other- 
wise directed,  a  stockholder  in  such  corporation,  and 
shall  have  as  many  shares  as  may  correspond  with  the 
amount  of  money  appropriated;  and  the  acceptance  of 
such  money  shall  be  deemed  to  be  a  consent  of  the  cor- 
poration to  the  terms  herein  expressed. 

Sec.  1698.  Railroad  and  other  companies  may  enter  on 
lands  to  build  their  works,  &c.  K.  C,  c.  61,  s.  9. 
1852,  c.  92,  s.  1.     1874-'5,  c.  83. 

Every  railroad,  plank-road,  tram-road,  turnpike,  and 
canal  company,  for  the  purpose  of  constructing  their 
road  or  canal,  may  at  any  time  enter  upon  the  lands 
through  which  they  may  desire  to  conduct  their  road  or 
canal,  and  lay  out  the  same  as  they  may  desire;  and 
they  may  also  enter  on  such  contiguous  land  along  the 
route  as  may  be  necessary  for  depots,  ware-houses, 
engine-sheds,  work-shops,  water-stations,  toll-houses, 
and  other  buildings  necessary  for  the  accommodation  of 
their  officers,  servants,  and  agents,  horses,  mules,  and 
other  cattle,  and  for  the  protection  of  their  property;  and 
shall  pay  to  the  proprietors  of  the  land,  so  entered  on, 
such  sum  as  may  be  agreed  on  between  them. 

Sec.  1699.  If  cannot  agree,  proceedfugs  to  assess  damages. 
K.  C,  c.  61,  s.  lO.     1874-'5,  c.  83. 

If  such  corporation  cannot  agree  with  the  owner  of  the 
land  which  is  entered  on,  or  is  desired  by  the  corporation 
for  the  purposes  aforesaid,  in  the  price  to  be  paid  for  the 
same,  then  either  the  company  or  the  owner  may  pro- 
ceed to  have  the  same  condemned  and  damages  assessed 
as  is  provided  in  the  chapter  entitled,  "Railroad  and  Tele- 
graph Companies." 

Holloway  v.  R.  R.  Co.,  85—453. 

Sec.  1700.  Keport  of  their  proceedings  made  and  suh- 
scribed;  form  of  report.    K.  C,  c.  61,  s.  17.    1874-'6, 

c.  83. 

When  the  commissioners  shall  have  assessed  the  dam- 
ages, they  shall  forthwith  make  and  subscribe  a  written 
report  of  their  i^roceedings,  in  substance  as  follows: 

We commtssioners,  appointed  by  the  court  to  assess  the 

damages  that  have  been  and  will  be  sustained  by the  owner  of 

certain  land  lying  in  Hie  covinly  of which  the company 

propose  to  condemn  for  its  use,  do  hereby  certify  that  we  met  on 

(or  the  day  to  which  we  were  regularly  adjourned),  and  having  first  been 


Chap.  38.1  INTEENAL  IMPEOVEMENTS.  651 

dulT  sworn  we  visited  the  premises  of  the  ower  and  after  taking  into  full 
consirraHou  the  quality  ami  quantity  of  the  Innd  aforcsa.d,  tbe  ad,.it,nnal 
feucin!?  lilu'ly  to  bo  occasioned  by  the  works  of  the  company,  and  all  otLer 
Inconvlnienci  likely  to  result  to  the  owner,  we  have  esi'mate^   a„d  do 

as.sess  the  damages  aforesaid  at  the  sum  of Given  under  our 

hands,  the day  of ,  A.  D 

Sec   1701.  Dwelling-lionses,  &c.,  not  to  be  condemned. 
is.  €.,  c.  61,  s.  21.     1853,  c.  93,  s.  1.     1874-'5,  c.  83. 

No  such  corporation  shall  be  allowed  to  have  con- 
demned to  its  use,  without  the  consent  of  the  owner,  his 
dwellmg-house,  yard,  kitchen,  garden  or  bui-ial  ground. 

Sec.   1703.  Company  may  take   material  from  adjacent 
ground.    K.  C,  c.  CI,  s.  23.    1874-'5,  c.  83. 

For  the  purpose  of  constructing  its  works  and  necessary 
appurtenances  thereto,  or  of  repairing  them  after  they 
shall  have  been  made,  or  of  enlargmg  or  otherwise  alter- 
ino-  them,  the  company  may,  at  any  time,  enter  on  any 
adjacent  lands,  and  cut,  dig,  and  take  therefroni  any 
wood,  stone,  gravel  or  earth,  which  may  be  deemed 
necessary:  Provided,  that  they  shall  not,  without  the 
consent  of  the  owner,  destroy  or  injure  any  ornamental 
or  fruit  trees. 

Sec.   1703.    Who   to  assess   value.    K.  C,  c.  61,    s.    23. 
l»74-'5,  c.  83. 

If  for  the  value  of  the  damages  done  to  the  owner  by 
reason  of  the  acts  in  the  preceding  section  mentioned, 
the  parties  may  be  unable  to  agree,  the  same  shall  be 
valued  by  any  three  freeholders  of  the  county. 

Sec.  1704.  Proceedings    to  value.    B.    C,    c.    61,  s.  24. 
1874-'5,  c.  83. 

Either  party,  for  that  purpose,  may  apply  to  the  clerk 
of  the  superior  court  of  the  county  wherein  the  damage 
is  done,  who  shall  thereupon  appoint  said  freeholders, 
and  thev,  being  duly  sworn  to  impartially  and  truly  assess 
the  damage,  shall,  after  hearing  such  proper  evidence  as 
may  be  laid  before  them,  report  the  value  thereof  to  the 
said  clerk.  And  on  the  return  to  him  of  the  report  he 
shall  render  judgment  for  the  damages  and  costs  against 
the  company,  and  issue  execution  therefor. 

Sec.  1705.  Justice  may  administer  oaths  to  fi-eeholders, 
&c.    K.  C,  c.  61,  s.  35.     1874-'5,  c.  83. 

Any  justice  may  administer  all  proper  oaths  to  the 
freeholders  and  witnesses. 


652  INTERNAL  IMPROVEMENTS.    [Chap.  38. 

Sec.  1706.  Appeal  aUowed.    R.  C.  c.  61,  s.  26.    1874:-'5, 

c.  83. 

Either  party  may  appeal  from  such  judgment  as  in 
other  cases,  and  under  the  same  rules. 

Sec.  1707.  Width  of  land  condemned  for  railroads.  R.  C, 
c.  61,  s.  27.     1874-'5,  c.  83. 

The  width  of  the  land  condemned  for  any  railroad  shall 
not  be  less  than  eighty  feet  nor  more  than  one  hundred, 
except  where  the  road  may  run  through  a  town,  when  it 
may  be  of  less  width;  or  where  there  may  be  deep  cuts 
or  high  embankments,  when  it  may  be  of  greater  width. 

Sec.  1708.  Width  of  land  for  plank-roads,  canals  and 
turnpikes.  R.  C,  c.  61,  s.  28.  1852,  c.  92.  1874-'5, 
c.  83. 

No  greater  width  of  land  than  sixty  feet  shall  be  con- 
demned for  the  use  of  any  plank-road,  tram-road,  canal 
or  turnpike. 

Sec.  1709.  Quantity  condemned  for  station  or  depot.  R. 
C,  c.  61,  s.  29.    1874-'5,  c.  83. 

No  greater  quantity  of  land  tlian  two  acres,  contiguous 
to  any  railroad,  plank-road,  tram-road,  turnpike  or  canal, 
shall  be  condemned  at  one  place  for  a  depot  or  station. 

Sec.  1710.  Railroads,  &c.,  crosssing  other  roads,  not  to 
ohstruct  them.    R.  C,  c.  61,  s.  30.    1874-'5,  c.  83. 

Whenever,  in  their  construction,  the  works  of  any  of 
said  corporations  shall  cross  established  roads  or  ways, 
the  corporation  shall  so  construct  its  works  as  not  to  im- 
pede the  passage  or  transportation  of  persons  or  property 
along  the  same. 

Sec.  1711.  Company  may  turn  road,  &c.  R.  C,  c.  61,  s. 
31.     1874-'5,  c.  83. 

In  order  to  prevent  the  frequent  crossing  of  such  roads 
or  ways,  or  in  cases  where  it  may  be  necessary  to  occupy 
the  same,  the  corporation  may  change  the  roads  and 
ways  so  as  to  avoid  such  crossing  and  occupation,  and  to 
such  points  as  may  be  deemed  expedient. 

Sec.  1712.  Damages  allowed  owners  on  whose  land  roads 
are  turned.    R.  C,  c.  61,  s.  32.     1874-'5,  c.  83. 

For  any  injury  done  to  the  lands  of  persons  by  taking 
them  under  the  pieceding  section,  the  value  thereof  shall 
be  assessed  in  like  manner  as  is  provided  for  assessing 


Chap.  S8.]  INTERNAL  IMPEOVEMENTS.  653 

damages  to  real  estate  as  is  provided  in  the  chapter  en- 
titled "Kailroad  and  Telegraph  Companies. 

Sec.  1713.  New  roads  made  good  as  former  one,  R.  C, 
c.  CI,  s.  33.     1874-'5,  c.  83. 

Before  any  part  of  an  established  road  or  way  shall  be 
impeded  by  any  of  said  corporations  the  new  road  or 
waV  shall  be  prepared  and  made  equally  good  with  the 
portion  proposed  to  be  discontinued;  and  then  the  same 
shall  be  deemed  a  part  of  the  original  road  or  way,  and 
shall  be  kept  up  and  repaired  as  before  the  change. 

Sec.  1714.  Incorporated  companies  to  furnisli  board 
with  maps,  &c.,  of  improvements.  B.  C,  c.  61,  s.  34. 
1850,  Resolution.    1853,  c.  92,  s.  6.    1874-'5,  c.  83. 

Every  company,  incorporated  for  the  purpose  of  im- 
proving the  internal  condition  of  the  state,  by  railroad, 
plank-road,  tram-road,  turnpike,  canal,  or  other  means, 
shall  furnish  to  the  board  a  correct  map  or  profile  of  the 
contemplated  improvements,  drawn  to  a  uniform  hori- 
zontal scale  of  four  hundred  feet  to  one  inch.  And  all 
such  charts  and  documents  of  a  like  character,  as  may  be 
furnished  to  the  state,  shall  be  deposited  for  safe  keepmg 
in  said  bureau,  under  charge  of  the  state  librarian,  or 
state  engineer,  in  case  there  be  such  an  officer. 

Sec.  1715.  Kailroad  and  other  companies  to  keep  accoimt 
of  produce  carried;  to  report  to  governor.  K,  C,  c. 
61,  s.  35.     1854,  Resolution.     1874-'5,  c.  83. 

The  president  and  directors  of  canal,  railroad,  plank- 
road  and  turnpike  companies,  whether  wholly  or  partly 
in  this  state,  are  required  to  keep  an  account  of  all  the 
products  of  this  state  intended  for  sale  abroad,  by  them 
transported  out  of  the  state,  or  to  any  shipping  poi-t 
therein;  and  report  the  same  to  the  governor  at  each 
session  of  the  general  assembly. 

Sec  1716.  Commissioners  and  freeholders  paid;  costs 
paid  by  company,  except  in  certain  cases.  R.  C,  c.  61, 
s   36.     1853,  c.  93,  ss.  3,  5.     1874-'5,  c.  83. 

Each  commissioner  and  freeholder  attending  for  the 
purpose  of  assessing  damages  to  the  owner  of  land  for 
purposes  of  repairs  shall  be  entitled  to  one  dollar  a  day 
while  engaged  in  the  business;  and  the  same,  with  ail 
other  costs  of  the  case,  shall  be  paid  by  the  corporation, 
unless  when  the  petition  of  the  owner  shall  be  dismissed, 
when  he  shall  pay  the  costs;  or  unless  m  case  of  excep- 


654  INTEENAL  IMPEOVEMENTS.   [Chap.  38. 

tion  taken  to  the  report,  or  of  appeal,  when  the  court 
may  adjudge  by  whom,  and  in  what  proportion,  the 
costs  shall  be  paid. 


Sec.  1717.  No  railroad,  plank-road,  &c.,  to  be  estab- 
lished, bnt  by  law;  penalty  and  misdemeanor  therefor. 
R.  C,  c.  61,  s.  37.     1874:-'5,  c.  83. 

If  any  person  or  corporation,  not  being  expressly 
authorized  thereto,  shall  make  or  establish  any  canal, 
turnpike,  tram-road,  railroad  or  plank-road,  with  the  in- 
tent that  the  same  shall  be  used  to  transport  passengers 
other  than  such  persons,  or  the  members  of  such  corpo- 
ration; or  to  transport  any  productions,  fabrics  or  manu- 
factures other  than  their  own,  the  person  or  corporation 
so  offending,  and  using  the  same  for  any  such  purpose, 
shall  forfeit  and  pay  fifty  dollars  for  every  person  and 
article  of  produce  so  transported;  and  shall,  moreover, 
be  guilty  of  a  misdemeanor,  they  and  all  persons  aiding 
therein,  and  shall  be  indicted  therefor  in  the  superior 
or  criminal  court. 

Sec.  1718.  Board  to  appoint  state  proxies.  R.  C,  c.  61, 
s.  38.     1874-'5,  c.  83. 

The  president  and  directors  of  the  board  of  internal 
improvements  shall  appoint,  on  behalf  of  the  state,  all 
such  officers  or  agents,  as,  by  any  act  incorporating  a 
company  for  the  purpose  of  internal  improvement,  are 
allowed  to  represent  the  stock  or  other  interests  which 
the  state  may  have  in  such  company;  and  such  person  or 
persons  shall  cast  the  vote  to  which  the  state  may  be 
entitled  in  all  the  meetings  of  the  stockliolders  of  such 
company. 

Sec.  1719.  Governor  authorized  to  have  affairs  of  rail- 
roads in  which  the  state  has  an  interest  investigated  by 
member  of  board  of  internal  improvements.  1870,  c. 
281,  s.  1. 

The  governor  is  authorized  and  empowered,  whenever 
he  may  think  the  public  service  requires  it,  to  have  the 
affairs  of  any  railroad  in  which  the  state  has  an  interest 
investigated  by  a  member  of  the  board  of  internal  im- 
provements, and  to  take  such  action  concerning  any 
matter  leported  upon  as  the  said  board  may  deem  "to  the 
interest  of  the  state. 


Chap.  39.] 


JURORS. 


655 
1879,  c. 


Sec.  1720.  Authority  to  administer  oaths,  &c. 
281,  s.  2. 

The  member  of  the  board  appointed  for  the  investiga- 
tion mentioned  in  the  preceding  section,  shall  have 
power  to  administer  oaths,  send  for  persons  and  papers, 
and  all  powers  granted  to  a  committee  of  investigation 
appointed  by  the  general  assembly. 

Sec.  1721.  Sheriff  to  execute  writs  issued  by  board;  pen- 
alty for  failure  or  refusal  to  obey  summons  or  answer 
questions.     1879,  c.  281.  s.  3. 

Sheriffs  shall  execute  writs  of  such  member  of  the 
board  of  internal  improvements  as  they  would  for  a  judi- 
cial officer  of  the  state,  and  shall  be  allowed  the  same 
compensation  therefor.  Any  person  failing  or  refusing 
to  obey  any  summons  of,  or  to  answer  questions  when 
required  so  to  do,  by  such  member  of  the  said  board, 
shall  be  guilty  of  a  misdemeanor. 


CHAPTER  THIRTY-NINE. 


JUEOES. 


Section. 

1723.  Jui-ors  shall  be  selected. 

1723.  List  of  names  to  be  made  out. 

1724.  Commissioners  to  insert  names 
in  jury  list. 

1725.  Commissioners  to  examine  ju- 
ry list,  and  may  examine  any 
person  on  oath. 

1726.  Names  to  be  put  in  box. 

1727.  How  jury  ehall  be  drawn. 

1728.  Jurors  who  have  suits  pend- 
ing. 

1729.  Uase  of  death  or  removal  from 
the  county. 

1730.  How  drawing  of  jury  to  con- 
tinue. 

1731.  In  case  of  a  special  term. 
1733.  When  commissioners  fail   to 

draw  a  jury. 
1733.  Jurors  to   be   summoned,  and 
to  attend  until  discharged  by 
court;  tales  jurors,  how  sum- 
moned and  qualifications. 


Section. 

1734.  Jurors  not  attending  fined 
twenty  dollars;  to  have  until 
next  term  to  make  excuse; 
tales  jurors  fined  two  dollars. 

1735.  Exempt  from  service  of  pro- 
cess. 

1736.  Jury  in  charge  of  an  oflicer  to 
be  furnished  with  accommo- 
dation as  court  may  order. 

1737.  Pay  of  tales  jurors  in  capital 
cases. 

1738.  In  capital  cases,  judge  may 
issue  a  special  venire. 

1739.  Special  venire,  how  drawn  and 
summoned. 

1740.  Penalty  on  sheriff  not  execut- 
ing writ,  and  on  jurors  not 
attending. 

1741.  Exceptions  to  jurors,  when  to 
be  taken. 

1742.  Foreman  of  grand  jury  to  ad- 
minister oaths. 


656  JUEORS.  [Chap.  39. 

Sec.  1722.  Jurors  shall  be  selected.    1868,  c.  9,  s.  1. 

The  commissioners  for  the  several  counties  at  their 
regular  meeting  on  the  first  Monday  of  September  in 
each  year  shall  cause  their  clerks  to  lay  before  them  the 
tax  returns  of  the  preceding  year  for  their  county,  from 
which  they  shall  proceed  to  select  the  names  of  such 
persons  only  as  have  paid  tax  for  the  preceding  year  and 
are  of  good  moral  character  and  of  sufficient  intelli- 
gence. 

Lee  V.  Lee,  71—139;  State  v.  Haywood,  73 — 437;  State  v.  Griffice,  74— 
816;  State  V.  Wincroft,  76—38;  State  v.  Healon,  77— 50o;  State  v.  Boone, 
80—461;  State  v.  Martin,  83—673;  State  v.  Cooper,  83—671;  State  v. 
Edens,  85—553;  State  v.  Watson,  86—634 

Sec.  1723.  List  of  names  to  be  made  out.    1868,  c.  9,  s.  2. 

A  list  of  the  names  thus  selected  shall  be  made  out  by 
the  clerk  of  the  board  of  commissioners,  and  shall  consti- 
tute the  jury  list:  Provided,  that  no  practicing  physician, 
regular  minister  of  the  gospel,  keepers  of  public  grist 
mills,  or  regularly  licensed  pilots,  members  of  fire  com- 
panies and  of  the  state  guard,  shall  be  required  to  serve 
as  jurors. 

Sec.  1724.  Commissioners  to  insert  names  in  jury  lists. 
1868,  c.  9,  s.  3. 

If  the  hst  so  made  out  does  not  contain  the  names  of 
all  the  inhabitants  who  are  qualified  as  provided  to  serve 
as  jurors,  the  commissioners  shall  insert  the  names  of 
such  inhabitants  in  the  jury  Hst. 

Sec.  1725.  Commissioners  to  examine  jury, list,  and  may 
examine  any  person  on  oath.     1868,  c.  9,  s.  4. 

At  each  regular  meeting  on  the  first  Monday  in  Sep- 
tember, in  each  year,  the  commissionei-s  shall  carefully 
examine  the  jury  lists  as  already  made  out,  compare  the 
same  with  the  tax  returns,  and  diligently  inquire  whether 
any  persons  qualified  to  be  jurors  as  provided  are  omitted, 
and  whether  any  persons  not  qualified  to  be  jurors,  as 
therein  provided,  have  been  inserted,  and  if  any  have 
been  inserted  not  possessing  the  requisite  qualifications, 
they  shall  strike  such  names  from  the  jury  lists,  and  in 
order  to  obtain  fuU  information  on  the  subject  the  com- 
missioners may  examine  on  oath  any  person  they  think 
proper. 

Sec.  1726.  Names  to  be  put  in  box.    1868,  c.  9,  s.  5. 

The  commissioners  shall  cause  the  names  on  their  jury 


Chap.  39.]  JURORS.  657 

list  to  be  written  on  small  scrolls  of  paper  of  equal  size 
and  put  into  a  box  procured  for  that  purpose,  which  must 
have  two  divisions  marked  Nos.  1  and  2,  and  two  locks, 
the  key  of  one  to  be  kept  by  the  sheriff  of  the  county,  the 
other  by  the  chairman  of  the  board  of  commissioners,  and 
the  box  by  the  clerk  of  the  board. 

State  V.  Davis.  2  Ired.,  153;  State  v.  Heaton,  77—505. 

Sec.  1727.  How  jury  shall  be  dravsTi.    1868,  c.  9,  s.  6. 
1868-'9,  c.  175. 

At  least  twenty  days  before  the  regular  fall  and  spring 
term  of  the  superior  court  in  each  year,  the  commission- 
ers shall  cause  to  be  drawn  from  the  jury  box  out  of  the 
partition  marked  No.  1  by  a  child  not  more  than  ten 
years  of  age,  thirty-six  scrolls,  and  the  persons  whose 
names  are  inscribed  on  said  scrolls  shall  serve  as  jurors 
at  the  fall  and  spring  terms  of  the  superior  court  to  be 
held  for  the  county  respectively  ensuing  such  drawing, 
and  the  scrolls  so  drawn  to  make  the  jury  shall  be  put 
into  the  partition  marked  No.  2.  The  said  commissioners 
shall  at  the  same  time  and  in  the  same  manner  draw  the 
names  of  eighteen  persons  who  shall  be  summoned  to  ap- 
pear and  serve  during  the  second  week  of  the  term  of 
said  court,  unless  the  judge  thereof  shall  sooner  discharge 
all  jurors  from  further  service;  and  the  trial  jm-y  which 
has  served  during  the  first  week,  shall  be  discharged  by 
the  judge  at  the  close  of  said  week,  unless  the  said  jury 
shall  be  then  actually  engaged  in  the  trial  of  a  case,  and 
then  they  shall  not  be  discharged  until  the  trial  is  deter- 
mined. 

State  V.  Haywood,  73—437;  State  v.  Grifflce,  74^316;  State  v.  Heaton, 
77—505;  Slate  v.  Cooper,  83—071. 

Sec.  1728.  Jurors  having  suits  pending.  1868,  c.  9,  s.  7. 

If  any  of  the  jurors  drawn  have  a  suit  pending  and  at 
issue  in  the  superior  court,  the  scrolls  with  their  names 
must  be  returned  into  partition  No.  1  of  the  jury  box. 

Slate  V.  Liles,  77—496;  State  v.  Smith,  80—410;  State  v.  Edens,  85-532; 
State  V.  Watson,  86—034. 

Sec.  1729.  Case  of    death  or  removal  from  the  county. 

1868,  c.  9,  s.  8. 

If  any  of  the  persons  drawn  to  serve  as  jurors  be  dead 
or  removed  out  of  the  county,  the  scrolls  with  the  names 
of  such  persons  must  be  destroyed,  and  in  such  cases 
other  persons  shall  be  drawn  in  their  stead. 


658  JUEORS.  [Chap.  39. 

Sec.  1730.  How  drawing  of  jurj' to  continue.  1868,  c.  9, 
s.  9. 

The  drawing  out  of  paitition  marked  No.  1  and  putting 
the  scrolls  drawn  into  partition  No.  2,  shall  continue  until 
all  the  scrolls  in  partition  No.  1  are  di-awn  out,  when  all 
the  scrolls  shall  be  retujued  into  partition  No.  1  and 
drawn  out  again  as  herein  directed. 

State  V.  Martin,  82—672. 

Sec.  1731.  In  case  of  a  special  term.  1868,  c.  9,  s.  10. 

Whenever  a  special  term  of  the  superior  court  is 
ordered  for  the  county,  the  commissionei-s,  fifteen  days 
before  the  holding  of  such  special  term,  shall  draw 
eighteen  jurors  to  attend  said  court  as  herein  provided 
for  drawing  jurors  of  the  regular  terms  thereof. 

Sec.   1732.   When    commissioners    fail    to  draw  a  jury. 
1868,  c.  9,  s.  11. 

If  the  commissioners  for  any  cause  fail  to  draw  a  jury 
for  any  term  of  the  superior  court,  regular  or  special, 
the  sheriff  of  the  county  and  the  clerk  of  the  commission- 
ers in  the  presence  of,  and  assisted  by  two  justices  of  the 
peace  of  the  county,  shall  draw  such  jury  in  the  manner 
above  prescribed  ;  and  if  a  special  term  shall  continue  for 
more  than  tAvo  weeks,  then  for  the  weeks  exceeding 
two,  a  jury  or  juries  may  be  drawn  as  in  this  section  pro- 
vided. 

Sec.  1733.  Jurors  to  toe  summoned,  and  to  attend  until 
discharged  by  court;  tales  jurors,  bow  summoned,  and 
qualifications.    R.  C,  c.  31,  s.  29.     1779,  c.  156,  ss.  6, 
9.     1806,  c.  694,  s.  1.    1830,  c,  42.     1868,  c.  9,  s.  12. 
1879,  c.  200.     1881,  c.  226. 
The  clerk  of  the  board  of  county  commissioners  shall, 
within  five  days  from  the  drawing,  deliver  the  list  of  the 
jurors  drawn  for  the  superior  court  to  the  sheriff  of  the 
county,  who  shall  summon  the  persons  therein  named  to 
attend  as  jurors  at  such  court,  which  summons  sliall  be 
served,  personally,  or  by  leaving  a  copy  thereof  at  the 
house  of  the  juror,  at  least  five  days  before  the  sitting  of 
the  court  to  which   he   may  be  summoned;  and  jurors 
shall  appear  and  give  their  attendance  until  duly  dis- 
charged; and,  that  there  may  not  be  a  defect  of  jurors, 
the  sheriff  shall  by  order  of  court  summon,  from  day  to 
day,  of  the  bystanders,  other  jurors,  being  freeholders, 
within  the  county  where  the  court  is  held,  to  serve  on 
the  petit  jury,  and  on  any  day  the  court  may  discharge 


Chap.  39.]  JURORS.  659 

those  who  have  served  the  preceding  day:  Provided,  that 
it  shall  be  a  disqualification  and  ground  of  challenge  to 
any  tales  juror  that  such  juror  has  acted  ni  the  same 
court  as  grand,  petit  or  tales  juror  within  two  years  next 
preceding  such  terms  of  the  court. 

Lee  V  Lee  71-139;  State  v.  Ragland,  73-12;  State  v.  Wincroft,  76- 
08-  State  V  WiUard,  79—660;  State  v.  Thorne,  81-555;  State  v.  Outer- 
bridge,  82-617;  State  v.  Howard,  82-623;  State  v.  Cooper,  83-671. 

Sec.  1734.  Jurors  not  attending  fined  twenty  dollars;  to 
Have  until  next  term  to  make  excuse;  tales  jurors  tinea 
two  dollars.  B.  C  c.  31,  s.  30.  1779,  c.  157,  ss.  4, 
9.     1783,  c.  189,  ss.  2,  4.     1804,  c.  664. 

Every  person  on  the  original  ve7iire  summoned  to  ap- 
pear as  a  juror,  who  shall  fail  to  give  his  attendance  un- 
til duly  discharged,  shaU  forfeit  and  pay  for  the  useo. 
the  county  the  sum  of  twenty  dollars,  to  be  imposed  by 
the  court-  Provided,  that  each  delinquent  juryman  shall 
have  until  the  next  succeeding  term  to  make  his  excuse 
for  his  non  attendance,  and,  if  he  shall  render  an  excuse 
deemed  sufficient  by  the  court,  he  shall  be  discharged  with- 
out costs.  And  every  person  summoned  of  the  bystand- 
ers who  shall  not  appear  and  serve  during  the  day  as  a 
iui^r,  shall  be  fined  in  the  sum  of  two  dollars,  unless  he 
can  show  sufficient  cause  to  the  court;  and  the  clerk  shall 
forthwith  issue  an  execution  against  the  estate  ot  tlie  de- 
linquent tales  juror  for  such  amercement  and  costs. 

State  V.  Joues,  67 — 285. 

Sec.  17.35.  Exempt  from  service  of  process.    K.  C,  c.  31, 
s.  31.     17  79,  c.  157,  s.  lO. 

No  sheriff  or  other  officer  shall  arrest  under  civil  pro- 
cess any  juror  during  his  attendance  on  or  going  to  and 
returning  from  any  court  of  record.  All  such  service 
shall  be  void,  and  tiie  defendant  on  motion  shall  be  dis- 
charged. 

Sec.  1730.  Jury  in  charge  of  officer  to  be  furnished  with 
accommodation  as  court  may  order.     1876-'7,  c.  173. 

When  any  jury,  impaneled  to  try  any  cause,  shall  fail 
to  agree  upon  a  verdict,  and  shall  be  put  in  charge  of  an 
officer  of  the  court,  the  said  officer  shall  furnish  said 
jurors  with  such  accommodation  as  the  court  may  order, 
and  the  same  shall  be  paid  for  by  the  party  cast  or  by  the 
county,  under  the  order  and  in  the  discretion  of  the  judge 
of  said  court. 

Young  V.  Com'rs.  76 — 316. 


660  JURORS.  [Chap.  39. 

Sec  1737.    Pay  of  tales  jurors  in  capital  cases.    1866-'7, 
c.  05. 

In  all  indictments  for  capital  felonies,  the  tales  jurors 
who  may  be  summoned  to  try  and  who  do  try  such  ac- 
tions shall  receive  the  same  pay  as  the  regular  panel  of 
jurors  receive  for  their  services. 

Sec.  1738.    In  capital  cases  judge  may  issue  a  special  ve- 
nire.   K.  C,  c.  35,  s.  30.    1830,  c.  27,  s.  1. 

Whenever  a  judge  of  the  superior  court  shaU  deem  it 
necessary  to  a  fair  and  impartial  trial  of  any  person 
charged  \vith  a  capital  offence,  he  may  issue  to  the  sher- 
iff of  the  county  in  which  the  trial  may  be,  a  special  writ 
of  venire  facias,  commanding  him  to  summon  such  num- 
ber of  the  freeholders  of  said  county  as  the  judge  may 
deem  sufficient  (such  number  being  designated  in  the 
writ),  to  appear  on  some  specified  dav  of  the  term  as 
juroi-s  of  said  court;  and  the  sheriff  shall  forthwith  exe- 
cute the  writ  and  return  it  to  the  clerk  of  the  court  on 
the  day  when  the  same  shall  be  returnable,  with  the 
names  of  the  jurors  summoned. 

State  V.  Perry,  Busb.,  330;  Slate  v.  Murph,"NVinst.,  129;  State  v.  Bullock, 
63—570. 


Sec.  1739.    Special  venire,  how  drawn  and  summoned. 

Whenever  a  judge  shall  deem  a  special  venire  neces- 
sary, he  may  at  his  discretion,  issue  an  order  to  the  clerk 
of  the  board'  of  commissioners  for  the  county,  command- 
ing him  to  bring  into  open  court  forthwith  the  jury  boxes 
of  the  county,  and  he  shall  cause  the  number  of  scrolls 
as  designated  by  him  to  be  drawn  from  box  No.  1,  by  a 
child  under  ten  years  of  age.  And  the  names  so  drawn 
(being  freeholders i  shall  constitute  the  special  venire,  and 
the  clerk  of  the  superior  court  shall  insert  their  names  in 
the  writ  of  venire,  and  deliver  the  same  to  the  sheiiff  of 
the  county,  and  the  persons  named  in  the  writ  and  no 
others  shall  be  summoned  by  the  said  sheriff.  If  the 
special  venire  is  exhausted  "before  the  jury  is  chosen, 
the  judge  in  his  disci-etion  may  order  another  special 
venire  to  be  drawn  and  summoned  in  like  manner  as  the 
fii-st,  until  the  jury  has  been  chosen.  The  scrolls,  con- 
taining the  names  of  the  persons  drawn  as  jurors  from 
box  No.  1  shall,  after  the  jury  is  chosen,  be  placed  in  box 
No.  2;  and  if  box  No.  1  is  exhausted  before  the  jury  is 
chosen,  the  drawing  shall  be  completed  from  box  No.  2, 
after  the  same  shall  have  been  well  shaken. 


Chap.  40.]     LANDLORD  AND  TENANT. 


661 


Sec.  1740.    Penalty  on  sheriff  not  executing  writ,  and  on 
jurors  not  attending.    K.  C,  c.  35,  s.  31.    1830,  c.  27, 

s.  2. 
If  any  sheriff  shall  fail  duly  to  execute  and  return  such 
writ  ol  venire  facias,  he  shall  be  fined  by  the  court  not 
exceeding  one  hundred  dollars;  and  all  juroi's  so  sum- 
moned shall  attend  until  discharged  by  the  court,  under 
the  same  rules  and  penalties  as  are  presciibed  for  other 
jurors. 

Sec.  1741.  Exceptions  to  jurors,  wlien  to  be  taken. 

All  exceptions  to  grand  jurors  for  and  on  account  of 
their  disqualifications  shall  be  taken  before  the  jury 
is  sworn  and  impaneled  to  try  the  issue,  by  motion  to 
quash  the  indictment,  and  if  not  so  taken  the  same  shall 
be  deemed  to  have  been  waived. 

Passim,  State  v.  Boon,  80-^61 ;  State  v.  Cooper,  83—671 ;  State  v.  Wat- 
son, 86—634. 

Sec.  1742.  Foreman  of  giand  jury  to  administer  oaths. 
1879,  c.  12. 

The  foreman  of  every  grand  jury  duly  sworn  and  im- 
paneled in  any  of  the  courts  shall  have  power  to  admin- 
ister oaths  and  affirmations  to  persons  to  be  examined 
before  it  as  witnesses:  Provided,  that  the  said  foreman 
shall  not  administer  such  oath  or  affirmation  to  any  per- 
sons except  those  whose  names  are  endorsed  on  the  bill 
of  indictment  by  the  officer  prosecuting  in  behalf  of  the 
state,  or  by  direction  of  the  court :  Provided  further,  that 
the  foreman  of  the  grand  jury  shall  mark  on  the  bill 
the  names  of  the  witnesses  sworn  and  examined  before 
the  jury. 

State  V.  Allen,  83—680;  State  t.  Hines,  84—810. 


CHAPTER  FORTr. 
LANDLOED  AND  TENANT. 


Section. 

1748.  When  lease  shall  be  in  writing. 

1744.  Lessors  not  partners  with  les- 
sees unless  they  so  con- 
tract. 


Section. 

1745.  Formal  demand  of  rent  not 
necessary  to  create  a  forfeiture 
when  there  is  a  proviso  for  re- 
entry. 


662 


LANDLORD  AND  TENANT.     [Chap.  40 


Section. 

1746.  Right  to  recover  for  use  and 
occupation,  when. 

1747.  Rents  apportioned  when  the 
estate  of  the  lessor  terminates. 

1748.  When  person  entitled  to  rents, 
&c.,  liniited  in  succession  dies, 
to  whom  payment  made. 

1749.  Where  lease  of  farming  land 
determines  during  a  current 
year,  tenant  to  hold  to  end  of 
year  in  lieu  of  emblements. 

1750.  W^hat  length  of  notice  re- 
quired to  terminate  a  tenancy. 

1751.  Tenant  not  liable  for  damages 
for  accidental  tire. 

1753.  Agreement  to  repair,  how  con- 
strued. 

1753.  In  case  of  accidental  damage, 
lessee  may  surrender  his  es- 
tate. 

1754.  Possession  of  crops  deemed 
vested  in  lessors;  preference  of 
lessor's  lien. 

1755.  Rights  of  lessee. 

1756.  How  to  proceed  in  case  of  any 
controversy  between  the  par- 
ties; undertaking  to  be  given 
by  lessee. 

1757.  Lessee  failing  to  give  said  un- 
dertaking, possession  of  the 
property  passes  to  lessor  upon 
liis  giving  an  undertaking, 

1758.  Provision  in  case  neither  party 
gives  the  undertaking;  unlaw- 
ful seizure  by  landlord  misde- 
meanor. ' 

1759.  Removal  of  crop  by  lessee 
without  notice,  a  misde- 
meanor. 

1760.  Misdemeanor  for  tenant  or  les- 
see to  surrender  possession  to 
other  person  than  landlord. 

1761.  Unlawful  for  tenant  to  injure 
house,  fruit  trees,  &c.,  of  land- 
lord. 


Section. 

1763.  Chapter  to  apply  to  lease  of 
turpentine  trees. 

1763.  Lessors  for  miuing  and  for 
getting  timber  entitled  to  the 
remedies  given  in  this  chapter. 

1764.  On  conveyance  of  the  rever- 
sion, &c.,  no  attornment  nec- 
essary. 

1765.  Riglits  of  grantees  of  rever- 
sions and  of  tenants  of  par- 
ticular estates. 

1766.  Tenants  who  hold  over  may  be 
dispossessed,  when. 

1767.  When  summons  shall  issue; 
oath  of  lessor. 

1768.  Officer  to  serve  summons, 
how. 

1769.  What  justice  to  do  if  defend- 
ant fails  to  appear  or  admit  al- 
legation. 

1770.  What  to  be  done  if  both  par- 
ties require  a  jury  trial. 

1771.  Powers  of  justices  the  same  as 

on  other  trials. 

1772.  Eitlier  party  may  appeal;  the 
undertaking;  increase  of  on 
appeal. 

1773.  What  done  if  defendant  ten- 
ders rent  in  arrear  and  costs. 

1774.  If  proceedings  quashed,  judg- 
ment of  restitution. 

1775.  Damages  may  be  recovered 
for  occupation  to  lime  of  trial. 

1776.  Defendant  may  recover  dam- 
ages for  his  removal  from  pos- 
session. 

1777.  Remedy  given  to  the  lessor 
when  the  tenant  deserts  prem- 
ises. 

1778.  Costs  to  successful  party. 

1779.  What  forms  sufficient. 

1780.  Forms  of  proceeding  before  a 
justice  of  the  peace,  for  the 
summary  ejectment  of  a  ten 
ant  holding  over. 


Sec.  1743.  When  lease  shall  be  in  writing.    1868-'9,  c. 
166,  s.  2. 

All  leases  and  contracts  for  leasing  land  for  the  purpose 


Chap.  40.]     LANDLORD  AND  TENANT.  6G3 

of  digging  foi'  gold  or  otlier  minerals,  or  for  mining  gen- 
erally, of  whatever  duration;  and  all  other  leases  and 
contiacts  for  leasing  lands,  exceeding  in  duration  three 
years  from  the  making  thereof,  shall  be  void  unless  put 
in  writing  and  signed  by  the  party  to  be  charged  there- 
with, or  by  some  other  person  by  him  thereto  lawfully 
authorized. 

Wade  V.  New  Beine,  77—460;  Krider  v.  Ramsay,  79—354. 

Sec.  1744.  Liessors  not  partners  with  lessees  unless  tLey 
so  contract.    lS68-'9,  c.  156,  s.  3. 

No  lessor  of  property,  merely  by  reason  that  he  is  to 
receive  as  rent  or  compensation  for  its  use  a  share  of  the 
proceeds  or  net  profits  of  the  business  in  which  it  is  em- 
ployed, or  any  other  uncertain  consideration,  shall  be 
lield  a  partner  of  the  lessee. 

ReynoUls  v.  Pool,  84—37;  Curtis  v.  Cash,  84r-41. 

Sec.  1745.  Formal  demand  of  rent  not  necessary  to  create 
a  forfcitiue,  when  there  is  a  proviso  for  re-entry. 
18C8-'9,  c.  156,  s.  4. 

Whenever  any  half  year's  rent  or  more  shall  be  in  ar- 
rear  from  any  tenant  to  his  landlord,  and  the  landlord  has 
a  subsisting  light  to  reenter  for  the  non-payment  of  such 
i-ent,  he  may  bring  an  action  for  the  recovery  of  the  de- 
mised premises,  and  the  service  of  the  summons  therein 
shall  be  deemed  equivalent  to  a  demand  of  the  ]ent  in 
arrear  and  a  re-entr)^  on  the  demised  premises,  and  if,  on 
the  trial  of  the  cause,  it  shall  appear  that  the  landlord 
had  a  right  to  re-enter,  the  plaintiff  shall  have  judgnient 
to  recover  the  demised  premises  and  his  costs. 

Sec.  1  746.  Kight  to  recover  for  use  and  occupation,  when. 
1868-'9,  c.  156.  s.  5. 

Whenever  any  person  shall  occupy  land  of  another 
by  the  permission  of  such  other,  without  any  express 
agreement  for  rent,  or  upon  a  parol  lease  which  is  void, 
the  landlord  may  recover  a  reasonable  compensation  for 
such  oaaipation,  and  if  by  such  parol  lease  a  certain  rent 
Avas  reserved,  such  reservation  may  be  received  as  evi- 
dence of  the  value  of  the  occupation. 

Sec.  1747.  Rents  apportioned,  when  the  estate  of  the 
lessor  terminates,  ii  G.  II.,  c.  19,  s.  15.  1868-'9,  c. 
156,  s.  6. 

If  a  lease  of  land,  in  which  rent  is  reserved,  payable  at 
the  end  of  the  year  or  other  certain  period  of  time,   be 


664:  LANDLORD  AND  TENANT.      [Chap.  40. 

determined  by  the  death  of  any  person  during  one  of  the 
periods  in  which  the  rent  was  groAviug  due,  the  lessor  or 
his  personal  representative  may  recover  a  part  of  the  rent 
which  becomes  due  after  the  death,  proportionate  to  the 
part  of  the  period  elapsed  before  the  death,  subject  to  all 
just  allowances;  and  if  any  security  shall  have  been 
given  for  such  rent  it  shall  be  apportioned  in  like  man- 
ner. 

Sec.  1 748.  When  person  entitled  to  rents,  &c.,  limited  in 
succession  dies,  to  wliom  payment  made.  1808-'i>,  c. 
156,  s.  7. 

In  all  cases  where  rents,  rent  charges,  annuities,  pen- 
sions, dividends,  or  any  other  payments  of  any  descrip- 
tion, are  made  payable  at  fixed  periods  to  successive 
owners  under  any  instrument,  or  by  any  will,  and  whei'e 
the  right  of  any  owner  to  receive  payment  is  terminable 
by  a  death  or  other  uncertain  event,  and  where  such 
right  shall  so  terminate  during  a  period  in  which  a  pay- 
ment is  growing  due,  the  payment  becoming  due  next 
after  such  terminating  event,  shall  be  apportioned  among 
the  successive  owners  according  to  the  parts  of  such 
periods  elapsing  before  and  after  the  terminating  event. 

Sec.  1749.  "Where  lease  of  farming  land  determines  dur- 
ing- a  current  year,  tenant  to  hold  to  end  of  year  in  lieu 
of  emblements.    1868-'9,  c.  166,  s.  8. 

Where  any  lease  for  years  of  any  land  let  for  farming 
on  which  a  rent  is  reserved  shall  determine  during  a  cur- 
rent year  of  the  tenancy,  by  the  happening  of  any  un- 
certain event  determining  the  estate  of  the  lessor,  the 
tenant  in  heu  of  emblements  shall  continue  his  occupa- 
tion to  the  end  of  such  current  year,  and  shall  then  give 
up  such  possession  to  the  succeeding  owner  of  the  land, 
and  shall  pay  to  such  succeeding  owner  a  part  of  the  rent 
accrued  since  the  last  payment  became  due,  proportion- 
ate to  the  part  of  the  period  of  payment  elapsing  after 
the  termination  of  the  estate  of  the  lessor,  to  the  giving 
up  such  possession,  and  the  tenant  in  such  case  shall  be 
entitled  to  a  reasonable  compensation  for  the  tillage  and 
seed  of  any  crop  not  gathered  at  the  expiration  of  such 
current  year  from  the  person  succeeding  to  the  posses- 
sion. 

Sec.  1750.  What  length  of  notice  required  to  terminate  a 
tenancy.    1868-'9,  c.  156,  s.  9. 

A  tenancy  from  year  to  year  may  be  terminated  by  a 


Chap.  40.]      LANDLORD  AND  TENANT.  665 

notice  to  quit  given  three  months  or  more  before  the  end 
of  the  current  year  of  the  tenancy;  a  tenancy  from 
month  to  month  by  a  like  notice  of  fourteen  days;  a 
tenancy  from  week  to  week,  of  two  days. 

Vincent  v.  Corbin,  85—108;  McAdou  v.  Callum,  86—419. 

Sec.  1751.  Tenant  not  liable  for  damage  for  accidental 
fire.     1868-'9,  c.  156,  s.  10. 

A  tenant  for  life,  or  years,  or  for  a  less  term,  shall  not 
be  liable  for  damage  occurring  on  the  demised  premises 
accidentally,  and  notwithstanding  reasonable  dibgence  on 
his  part;  unless  he  so  contract. 

Sec.  1752.  Agreement  to  repair,  how  construed.    1868- 
'9,  c.  156,  s.  11. 

An  agreement  in  a  lease  to  repair  a  demised  house  shall 
not  be  construed  to  bind  the  contracting  party  to  rebuild 
or  repair  in  case  the  house  shall  be  destroyed  or  damaged 
to  more  than  one  half  its  value,  by  accidental  fire  not  oc- 
curring from  the  want  of  ordinary  diligence  on  his 
part. 

Sec.  1753.  In  case  of  accidental  damage,  lessee  may  sur- 
render his  estate.    1868-'0,  c.  156,  s.  12. 

If  a  demised  house,  or  other  building,  be  destroyed 
during  the  term,  or  so  much  damaged  that  it  cannot  be 
made  reasonably  fit  for  the  purpose  for  which  it  was 
hired,  except  at  an  expense  exceeding  one  year's  rent  ot 
the  premises,  and  the  damage  occur  without  negligence 
on  the  part  of  the  lessee  or  his  agents  or  servants,  and 
there  be  in  the  lease  no  agreement  respecting  repaii-s,  or 
providing  for  such  a  case,  and  the  use  of  the  house  dam- 
aged was  the  main  inducement  to  the  hiring,  the  lessee 
may  surrender  his  estate  in  the  demised  premises  by  a 
writing  to  that  effect  delivered  or  tendered  to  the  land- 
lord within  ten  days  from  the  damage,  and  by  paying  or 
tendering  at  the  same  time  all  rent  in  arrear,  and  a  part 
of  the  rent  growing  due  at  the  time  of  the  damage,  pro- 
portionate to  the  time  between  the  last  period  of  pay- 
ment and  the  occurrence  of  the  damage,  and  the  lessee 
shall  be  thenceforth  discharged  from  all  rent  accruing 
afterwards;  but  not  from  any  other  agreement  in  the 
lease.  This  section  shall  not  apply  if  a  contrary  intention 
appear  from  the  lease. 

Harrison  v.  Ricks,  71 — 7. 


666  LANDLORD  AND  TENANT.     [Chap.  40. 

Sec.  1754.  I'ossession  of  crops  deemed  vested  in  lessors; 
preference  ot  lessor's  liea.     1870-'7,  c.  283,  s.  1. 

When  lands  shall  be  rented  or  leased  by  agreement, 
written  or  oral,  for  agricultural  purposes,  or  shall  be  cul- 
tivated by  a  cropper,  unless  otherwise  agreed  between  the 
parties  to  the  lease  or  agreement,  any  and  all  crofis  raised 
on  said  lands  shall  be  deemed  and  held  to  be  vested  in  pos- 
session of  the  lessor  or  his  assigns  at  all  times,  until  the 
rents  for  said  lands  shall  be  paid  and  until  all  the  stii)u- 
lations  contained  in  the  lease  or  agreement  shall  be  per- 
formed, or  damages  in  lieu  thereof,  shall  be  paid  to  the 
lessor  or  his  assigns,  and  until  said  party  or  his  assigns 
shall  be  paid  for  all  advancements  made  and  expenses  in- 
curred in  making  and  saving  said  crops.  This  lien  shall 
be  preferred  to  all  other  liens,  and  the  lessor  or  his  as- 
signs shall  be  entitled  against  the  lessee  or  cropper  or  the 
assigns  of  either  who  shall  remove  the  crop  or  any  part 
thereof  from  the  lands  without  the  consent  of  the  lessor 
or  his  assigns,  or  against  any  other  person  who  may  get 
possession  of  said  crop  or  any  part  thereof,  to  the  reme- 
dies given  in  an  action  upon  a  claim  for  the  delivery  of 
personal  pioperty. 

State  V.  Burwell,  63— 6G1;  McCombs  v.  Wallace,  66—587;  Alsbrook  ▼. 
Shields,  67 — 333;  Harrison  v.  Hicks,  71 — 7;  Vartier  v.  Spencer,  72 — 281; 
Huggins  V.  Wood,  72—256;  Haywood  v.  Rogers,  73—320;  Neal  v.  Bellamy, 
73—384;  State  v.  Surlcs,  74—330;  Thrcndgill  v.  McLendon,  76—24;  Foster  v. 
Peury,  70—131;  Avera  v.  McNeill,  77—50;  State  v.  Long,  78—571;  Durham 
V.  Speck,  82—87;  Slaughter  v.  Winfrey,  85—159;  State  v.  Copeland, 
86—691. 

Sec.  1755.  Kights  of  lessee.     1870-'7,  c.  261.    1876-'7, 

c.  283,  s.  2. 

Whenever  tlie  lessor  or  his  assigns  shall  get  the  actual 
possession  of  the  crop  or  any  part  thereof  otherwise  than 
by  tlie  mode  prescribed  in  the  preceding  section,  and  said 
lessor  or  his  assigns  shall  refuse  or  neglect,  upon  a  notice, 
written  or  oral,  of  five  days,  given  by  the  lessee  or  crop- 
per or  the  assigns  of  either,  to  make  a  fair  division  of 
said  crop,  or  to  pay  over  to  such  lessee  or  cropper  or  the 
assigns  of  either,  such  part  thereof  as  he  may  be  entitletl 
to  under  tiio  lease  or  agreement,  then  and  in  that  case 
the  lessee  or  cropper  or  the  assigns  of  either  shall  be  en- 
titled against  the  lessor  or  his  assigns  to  the  remedies 
given  in  an  action  upon  a  claim  for  the  delivery  of  per- 
sonal property  to  recover  such  part  of  the  crop  as  he,  in 
law  and  according  to  the  lease  or  agreement,  may  be  en- 
titled to.     The  amount  oi-  quantity  of  such  crop  claimed 


Chap.  40.]      LANDLORD  AND  TENANT.  667 

by  said  lessee  or  cropper  or  the  assigns  of  either,  together 
with  a  statement  of  the  grounds  upon  which  it  is  claimed, 
shall  be  fully  set  forth  in  an  affidavit  at  the  beginning  of 
the  action. 

State  V.  Sears,  71 — 295;  Farmer  v.  Pickens,  83 — 549;  Wilson  v.  Respass, 
86—113;  Stale  v.  Copeland,  86—691;  Palston  v.  Kose,  87— 279;  State  v. 
Webb,  87—558. 

Sec.  1750.  How  to  proceed,  iu  case  of  any  controversy  be- 
tween the  parties  ;  wndertakiug  to  be  given  by  lessee. 
1876-'7,  c.  283,  s.  S. 

Where  any  controversy  shall  arise  between  the  parties, 
and  neither  party  avails  himself  of  the  provisions  of  this 
ciiapter,  it  shall  be  competent  for  either  party  to  proceed 
at  once  to  have  the  matter  determined  in  the  court  of  a 
justice  of  the  peace,  if  the  amount  claimed  be  two  hun- 
dred dollars  or  less,  and  in  the  superior  court  of  the  county 
where  the  property  is  situate  if  the  amount  so  claimed 
shall  be  more  than  two  hundred  dollars.  But  in  case 
there  shall  be  a  continuance  or  an  appeal  from  the  jus- 
tice's decision  to  the  supeiior  court,  the  lessee  or  cropper, 
or  the  assigns  of  either,  shall  be  allowed  to  retain  posses- 
sion of  said  property  upon  his  giving  an  undertaking  to 
the  lessor  or  his  assigns,  or  the  adverse  party,  in  a  sum 
double  the  amount  of  the  claim,  if  such  claim  does  not 
amount  to  more  than  the  value  of  such  property,  other- 
wise to  double  the  value  of  such  property,  with  good  and 
sufficient  surety,  to  be  approved  by  the  justice  of  the 
peace  or  the  clerk  of  the  superior  court,  conditioned  for 
the  faithful  payment  to  the  adverse  party  of  such  dam- 
ages as  he  shall  recover  in  said  action. 

Wilson  T.  Respass.  86—112;   State  v.  Copeland,  80—691. 

Sec.  1757.  Lessee  failing  to  give  said  undertaking,  posses- 
sion of  the  property  passes  to  lessor  upon  liis  giving  an 
undertaking.     1876-'7,  c.  283,  s.  4. 

In  case  the  lessee  or  cropper,  or  the  assigns  of  either, 
^hall,  at  the  time  of  the  appeal  or  continuance  mentioned 
in  the  preceding  section,  fail  to  give  the  undertaking 
therein  required,  then  the  constable  or  other  lawful  of- 
ficer shall  deliver  the  property  into  the  actual  possession 
of  the  lessor  or  his  assigns,  upon  the  lessor  or  his  assigns 
giving  to  the  adverse  party  an  undertaking  in  double  the 
amount  of  said  property,  to  be  justified  as  required  in  the 
preceding  section,  conditioned  for  the  forthcoming  of 
such  property,  or  the  value  thereof,  in  case  judgment 
shall  be  pronounced  against  him. 


C6S  LANDLORD  AND  TENANT.     [Chap.  40. 

Sec.  1758.  Provision  in  case  neither  party  {jivcs  the 
nndcrtakiug.     1876-'7,  c.  283,  s.  5. 

If  neither  party  gives  the  undertaking  describerl  in  the 
two  preceding  sections,  it  sliall  be  the  duty  of  the  justice 
of  the  peace  or  the  clerk  of  the  superior  court,  to  issue 
an  order  to  the  constable  or  sheriiif.  or  other  lawful  offi- 
cer, directing  him  to  take  into  his  possession  all  of  said 
property,  or  so  much  thereof  as  shall  be  necessary  to  sat- 
isfy the  claimant's  demand  and  costs,  and  to  sell  the 
same  under  the  rules  and  regulations  prescribed  bv  law 
for  the  sale  of  personal  property  under  execution,  and  to 
hold  the  proceeds  thereof  subject  to  the  decision  of  the 
court  upon  the  issue  or  issues  pending  between  the  par- 
ties. 

Slaughter  v.  Winfrey,  85-159. 

Sec.  1759.  Kemoval  of  crop  by  lessee  without  notice,  a 
misdemeanor;  unlawful  seizure  by  landlord,  a  misde- 
meanor.   1876-'7,  c.  283,  s.  C.    1883,  c.  83. 

Any  lessee  or  cropper,  or  the  assigns  of  either,  or  any 
other  person,  who  shall  remove  said  crop,  or  any  part 
thereof,  from  such  land  without  the  consent  of  the  lessor 
or  his  assigns,  and  without  giving  him  or  his  agent  five 
days'  notice  of  such  intended  removal,  and  before  satisfy- 
ing all  the  liens  held  by  the  lessor  or  his  assigns,  on  said 
crop,  shall  be  guilty  of  a  misdemeanor,  and  if  any  land- 
lord shall  unlawfully,  wilfully,  knowingly  and  without 
process  of  law,  and  unjustly  seize  the  crop  of  his  tenant 
when  there  is  nothing  due  him,  he  shaU  be  guilty  of  a 
misdemeanor. 

State  V.  Sears,  71—295;  Varner  v.  Spencer,  72—381;  State  v.  Long,  7S— 
571;  State  v.  Pender,  83—651;  State  v.  Webb,  87—558. 

Sec.  1760.  Misdemeanor  for  tenant  or  lessee  to  surrender 
possession  to  other  person  than  landlord.  1883,  c. 
138. 

Any  tenant  or  lessee  of  lands  who  shall  wilfully,  wrong- 
fully and  with  intent  to  defraud  the  landlord  or  lessor, 
give  up  the  possession  of  the  rented  or  leased  premises  to 
any  person  other  than  his  landlord  or  lessor,  shall  be 
guilty  of  a  misdemeanor,  and  fined  or  imprisoned,  or 
both,  at  the  discretion  of  the  court. 

Sec.   17G1.  Unlawful  for  tenant    to    injure   house,  fruit 
trees,  &c.,  of  landlord.    1883,  c.  224. 
Any  tenant  who  shall,  during  his  term  or  after  its  ex- 
piration, wilfully  and  unlawfully  demolish,  destroy,  de- 


Chap.  40.]    LANDLORD  AND  TENANT.  669 

face,  injure  or  damage  any  tenement  house,  uninhabited 
house  or  other  outhouse,  belonging  to  his  landlord  or  up- 
on his  premises  by  removing  parts  thereof  or  by  burning, 
or  in  any  other  manner,  or  shall  unlawfully  and  wil- 
fully burn,  destroy,  pull  down,  injure  or  remove  any 
fence,  wall  or  other  inclosure  or  any  part  thereof,  built 
or  standing  upon  the  premises  of  such  landlord,  or  shall 
wilfully  and  unlawfully  cut  down  or  destroy  any  fruit, 
shade  or  ornamental  tree  belonging  to  said  landlord,  shall 
be  guilty  of  a  misdemeanor,  and  fined  or  imprisoned  or 
both,  at  the  discretion  of  the  court. 

Sec.  17G2.  This  chapter  to  apply  to  lease  of  turpentine 
trees.  1876-'7,  c.  383,  s.  7. 
This  chapter  shall  apply  to  all  leases  or  contracts  to 
lease  turpentine  trees,  and  the  parties  thei-eto  shall  be 
fully  subject  to  the  provisions  and  penalities  of  this 
chapter. 

Sec.  17«3.  Tjcssors  for  mining  and  for  getting  tiniher 
eutitlert  to  the  remedies  given  in  this  chapter.  18G8- 
'J>,  c.  15G,  s.  16. 

If  in  a  lease  of  land  for  mining,  or  of  timbered  land 
for  the  i^urpose  of  manufacturing  the  timber  into  goods, 
rent  shall  be  reserved,  and  if  it  shall  be  agreed  in  the  lease 
that  the  minerals,  timb3r  or  goods,  or  any  portion  thereof , 
shall  not  bo  removed  until  the  payment  of  the  rent,  in 
such  case  the  lessor  shall  have  the  rights  and  be  entitled 
to  the  remedy  given  by  this  chapter. 

Sec.  1  7G4.  On  conveyance  of  the  reversion,  &c.,  no  attorn- 
meiit  necessary.  4  &  5  Ann.,  c.  16,  s.  9.  18G8-'9,  c. 
1,56,  s.  17. 

Every  conveyance  of  any  rent,  reversion,  or  remainder 
in  lands,  tenements  or  hereditaments,  otherwise  sufficient, 
shall  be  deemed  complete  without  attornment  by  the 
holders  of  particular  estates  in  said  lands:  Provided,  no 
holder  of  a  particular  estate  shall  be  prejudiced  by  any 
act  done  by  him  as  holding  under  his  grantor,  without 
notice  of  such  conveyance. 

Sec.  1765.  Rights  of  grantees  of  reversions,  and  of  ten- 
ants of  particular  estates.  32  H.  VIII.,  c.  34,  1 8G8-'9, 
c.  1  r>6,  s.  1 8. 

The  grantee  in  every  conveyance  of  reversion  in  lands, 
tenements  or  hereditaments,  shall  have  the  hke  advan- 


670  LANDLOED  AND  TENANT.     [Chap.  40. 

tagesand  remedies  by  action  or  entry,  against  the  holders 
of  particular  estates  in  such  real  property,  and  their 
assigns,  for  non-payment  of  rent,  and  for  the  nonper- 
formance  of  other  conditions  and  agreements  contained 
in  the  mstruments  by  the  tenants  of  sucli  particular 
estates,  as  the  grantor  or  lessor  or  his  heirs  might  have; 
I  and  the  holders  of  such  particular  estates,  and  their  as- 
signs, shall  have  the  like  advantages  and  remedies  against 
the  grantee  of  the  reversion,  or  any  part  thereof,  for  any 
conditions  and  agreements  contained  in  such  instruments, 
as  they  might  have  had  against  the  grantor  or  his  less(jr 
or  his  heirs. 

Sec.  1766.  Tenants  who  hold  over  may  be  dispossessed, 
when.     1868-'9,  c.  156,  s.  19. 

Any  tenant  or  lessee  of  any  house  or  land,  and  the 
assigns  under  the  tenant  or  legal  representatives  of  such 
tenant  or  lessee,  who  shall  hold  over  and  continue  in  the 
possession  of  the  demised  premises,  or  any  part  thereof, 
without  the  permission  of  the  landlord,  and  after  demand 
made  for  its  surrender,  may  be  removed  from  such  pre- 
mises in  the  manner  hereinafter  prescribed  m  either  of 
the  following  cases: 

(1)  Whenever  a  tenant  in  possession  of  real  estate  holds 
over  after  his  term  has  expired; 

(2)  When  the  tenant  or  lessee,  or  other  person  under 
him,  has  done  or  omitted  any  act  by  which,  according  to 
the  stipulations  of  the  lease,  his  estate  has  ceased. 

Creedle  v.  Gibbs,  65—193;  Calloway  v.  Ilamby,  65—631;  Turner  v, 
Lowe,  66—413;  McCombs  v.  Wallace,  66— i8l;  McMillan  v.  Love,  73—18; 
Abbott  V.  Cromartie,  7:i— 393;  Greer  v.  Wilbar,  73—593;  Poisythe  v.  Bul- 
lock, 74—135;  Garrett  v.  Com'rs  of  Edenton,  74—388;  Medlin  v.  Steele,  75 
—154;  Riley  v.  Jordan,  75—180;  Heyer  v.  Beatty,  76—38;  Greeu  v.  N.  C. 
Railroad  Co.,  77—95;  Foster  v.  Penry,  77—160;  Sanders  v.  Ellington,  77— 
255;  Wilson  v.  James,  79—349;  Meroney  v.  Wriglit,  81—390;  Johnson  v. 
Hauser,  83—375;  Davis  v.  Davis,  83—71;  Scott  v.  El  kins,  83—424;  Parker 
V.  Allen,  84—466;  Hughes  v.  Mason,  84-^73;  Cotlingham  v.  McKay,  86— 
241;  McAdtio  v.  Galium,  86—419;  Halin  v.  Latham,  87—173. 

Sec.  1  767.    AVlieu  summons   shall    issue;   oath  of  lessor 
1868-'9,  o.  1.-56,  s.  20.     1869-'70,  c.  212. 

When  the  le.s.sor  or  his  assigns,  or  his  or  their  agent  or 
attorney,  shall  make  oath  in  writing,  before  any  justice 
of  the  peace  of  the  county  in  Avhich  the  demised  premises 
are  situated,  stating  such  facts  as  constitute  one  of  the 
cases  above  described,  and  describing  the  premises,  and 


Chap.  40.]     LANDLOED  AND  TENANT.  671 

asking  to  be  put  in  possession  thereof,  the  justice  shall 
issue  a  suminou5  reciting  the  substance  of  the  oath,  and 
i-equiring  the  defendant  to  appear  before  him  or  some 
other  justice  of  the  county,  at  a  certain  place  and  time, 
(not  to  exceed  five  days  from  the  issuing  of  the  summons, 
without  the  consent  of  the  plaintiff  or  his  agent  or  attor- 
ney) to  answer  the  complaint.  The  plaintiff  or  his  agent 
or  attorney  may  in  his  oath  claim  rent  in  arrear,  and 
damage  for  the  occupation  of  the  premises  since  the  ces- 
sation of  the  estate  of  the  lessee:  Provided,  the  sum 
claimed  shall  not  exceed  two  hundred  dollars;  but  if  he 
shall  omit  to  make  such  claim,  he  shall  not  be  thereby 
pi'ejudiced  in  any  other  action  for  their  recovery. 

Medlinv.  Steele,  75—154;  Ncsbift  v.  Turrcntine,  83—535;  Cottinghain  v. 
McKay,  86—241 ;  McAdoo  v.  Galium,  86—419. 

Sec.  1  768.  Officer  to  serve  summons,  how.     1868-'9,  c. 
156,  s.  21. 

The  officer  receiving  such  summons  shall  immediately 
serve  it  by  the  delivery  of  a  copy  to  the  defendant  or  by 
leaving  a  copy  at  his  usual  or  last  place  of  residence,  with 
some  adult  person,  if  any  such  be  found  there;  or,  if  the 
defendant  have  no  usual  place  of  residence  in  the  county 
and  cannot  be  found  therein,  by  fixing  a  copy  on  some 
conspicuous  part  of  the  premises  claimed. 

Sec.  1769.  What  justice  to  do  if  defendant  fail  to  appear 
or  admit  allegation.     1868-'9,  c.  156.  s.  23. 

The  summons  shall  be  returned  according  to  its  tenoi", 
and  if  on  its  return  it  shall  appear  to  have  been  duly 
served,  and  if  the  defendant  shall  fail  to  appear  or  shall 
admit  the  allegations  of  the  complaint,  the  justice  shall 
give  judgment  that  the  defendant  be  removed  fiom,  and 
the  plaintiff  be  put  in,  possession  of  the  demised  premises; 
and  if  any  rent  or  damages  for  the  occupation  of  the 
premises  after  the  cessation  of  the  estate  of  the  lessee, 
not  exceeding  two  hundred  dollars,  be  claimed  in  the 
oath  of  the  plaintiff  as  due  and  unpaid,  the  justice  shall 
inquire  thereof,  and  give  judgment  as  he  may  find  the 
fact  to  be. 

Sec.  1770.  Wliat  to  he  done  if  hoth  iiarties  require  a  jury 
trial.     1868-'9,  c.  156,  s.  23. 

If  the  defendant  by  his  answer  shall  deny  any  material 
allegation  in  the  oath  of  the  plaintiff,  the  justice  shall  hear 
the  evidence  and  give  judgment  as  he  shall  find  the  facts 
to  be.     If  either  party  shall  demand  a  trial  by  jury,  and 


672  LANDLORD  AND  TENANT.     [Chap.  40. 

shall  deposit  with  the  justice  a  sum  of  money  equal  to 
the  costs  of  such  jury,  the  justice  shall  immediately 
cause  to  be  summoned  twelve  lawful  jurors,  fi-om  whom 
a  jvii-y  of  six  shall  be  obtained  and  impaneled  as  is  pre- 
scribed in  other  cases  of  trial  by  jury  before  a  justice, 
who  shall  decide  upon  the  issues  of  fact  joined  between 
the  parties,  and  if  rent  or  damages  be  claimed  as  afore- 
said shall  assess  the  same.  The  justice  shall  record  the 
verdict  and  render  judgment  accordingly;  and  if  the  jury 
shall  find  that  the  allegation  in  the  plaintiff's  oath,  which 
entitles  him  to  be  put  in  possession,  is  true,  the  justice 
shall  give  judgment  that  the  defendant  be  removed  from, 
and  the  plaintiff  put  in  possession  of  the  demised  prem- 
ises, and  also  for  such  rent  and  damages  as  shall  have 
been  assessed  by  the  jury  and  for  costs;  and  shall  issue 
his  execution  to  carry  the  judgment  into  effect. 

Smith  V.  Stewart,  83—406. 

Sec.  1771.  Powers  of  justices  the  same  as  on  other  trials. 
1868-'9,  c.  156,  s.  34. 

On  trials  under  this  chapter  the  justice  shall  have  the 
powers  given  him  in  other  cases  of  trials  before  him,  and 
be  subject  to  like  duties. 

Heyer  v.  Beatty,  76—28. 

Sec.  1772.  Either  party  may  appeal;  the  unilertakinfr,  in- 
crease of  undertaking-  on  appeal.  1868-'9,  c.  156,  s. 
25.     1883,0.316. 

Either  party  may  appeal  from  the  judgment  of  the  jus- 
tice, as  is  prescribed  m  other  cases  of  appeal  from  the 
judgment  of  a  justice;  but  no  execution  commanding  the 
removal  of  a  defendant  from  the  possession  of  the  de- 
mised premises,  shall-  be  suspended  until  the  defendant 
shall  have  given  an  undertaking  in  an  amount  not  less 
than  one  year's  rent  of  the  premises,  with  sufficient 
surety,  who  shall  justify  and  be  approved  by  the  justice, 
to  be  void  if  the  defendant  shall  pay  any  judgment  which 
in  that  or  any  cjther  action  the  plaintiff'  may  recover  for 
rent,  and  for  damages  for  the  detention  of  the  land. 

At  any  term  of  the  superior  court  of  the  county  in 
which  siich  appeal  is  docketed  after  the  lapse  of  one 
year  from  the  date  of  the  filing  of  the  undertakuig  above 
mentioned,  tiie  tenant,  after  legal  notice  to  that  end  has 
been  duly  executed  on  him,  may  be  required  to  show 
cause  why  said  undertaking  should  not  be  increased  to 
an  amount  sufficient  to  cover  rents  and  damages  for  sucii 
period  as  to  the  court  may  seem  proper,  and  if  such  ten- 


Chap.  40.]     LANDLORD  AND  TENANT.  673 

ant  shall  fail  to  show  proper  cause  and  shall  not  file  such 
bond  foi-  rents  and  damages  as  the  court  may  direct,  or 
make  affidavit  that  he  is  unable  so  to  do  and  show 
merits,  his  appeal  shall  be  dismissed  and  the  judgment 
of  the  justice  of  the  peace  shall  be  affirmed. 

Steadman  v.  Jones,  65—388;  Critcher  v.  Hodges,  G8— 33;  Heyer  v. 
Beatty,  76—38;  Rollins  v.  Henry,  76—369;  Rollins  v.  Heniy,  77—467; 
Lane  v.  Morton,  78 — 7. 

Sec.  1773.  What  clone  if  defendant  tenders  rent  in  arrear 
and  costs.  4  Geo.  II.,  c.  28,  s.  2.  1868-'9,  c.  156,  s. 
26. 

If,  in  any  action  brought  to  recover  the  possession  of 
demised  premises  upon  a  forfeiture  for  the  non-payment 
of  rent,  the  tenant,  before  judgment  given  in  such  ac- 
tion, shall  pay  or  tender  the  rent  due  and  the  costs  of  the 
action,  all  further  proceedings  in  such  action  shall  cease; 
orif  the  plaintiff  shall  further  prosecute  his  action,  and 
the  defendant  shall  pay  into  court  for  the  use  of  the 
plaintiff  a  sum  equal  to  that  which  shall  be  found  to  be 
due,  and  the  costs,  to  the  time  of  such  payment,  or  to 
the  time  of  a  tender  and  refusal,  if  one  has  occurred,  the 
defendant  shall  recover  from  the  plaintiff  all  subsequent 
costs;  the  plaintiff  shall  be  allowed  to  receive  the  sum 
paid  into  court  for  his  use,  and  the  proceedings  shall  be 
stayed. 

Sec.  1774.  If  proceedings  quashed,  judgment  of  restitu- 
tion.   1868-'9,  c.  156,  s.  27. 

If  the  proceedings  before  the  justice  shall  be  brought 
before  a  superior  court  and  quashed,  or  judgment  be  given 
against  the  plaintiff,  the  superior  or  other  com't  in  which 
final  judgment  shall  be  given,  shall,  if  necessary,  restore 
the  defendant  to  the  possession,  and  issue  such  writs  as 
shall  be  proper  for  that  purpose. 

Perry  v.  Tupper,  70—538;  Perry  v.Tupper,  71— 385;Meroney  v.  "Wright, 
81—890;  Meroney  v.  Wright,  84:— 336. 

Sec.  1775.  Damages  may  be  recovered  for  occupation  to 
time  of  trial.    1868-'9,  c.  156,  s.  28. 

On  appeal  to  the  superior  court,  the  jury  trying  the 
issue  joined,  shall  assess  the  damages  of  the  plaintiff  for 
the  detention  of  his  possession  to  the  time  of  the  trial  in 
that  court,  and  judgment  for  the  rent  in  arrear  and  for 
tlie  damages  assessed  may,  on  motion,  be  rendered  against 
the  sm-eties  to  the  appeal. 

Ncsbitt  V.  Turrentiue,  83—535. 
29 


674  LANDLORD  AND  TENANT.     [Chap.  40. 

Sec.  1776.  Defendant  may  recover  damages  for  Lis  re- 
moval from  possession.    1868-'9,  c.  15G,  s.  30. 

If,  by  order  of  the  justice,  the  plaintiff  shall  be  put  in 
possession,  and  the  proceedings  shall  afterwards  be 
quashed  or  reversed,  the  defendant  may  recover  damages 
of  the  plaintiff  for  his  removal. 

Sec.  1777.  Remedy  given  to  the  lessor,  when  the  tenant 
deserts  premises.    1868-'9,  c.  156,  s.  32. 

If  any  tenant  or  lessee  of  lands  or  tenements,  being  in 
arrear  for  rent,  or  having  agreed  to  cultivate  the  demised 
premises  and  to  pay  a  part  of  the  crop  to  be  made  there- 
on as  rent,  or  who  shall  have  given  to  the  lessor  a  lien  on 
such  crop  as  a  secuiity  for  the  rent,  shall  desert  the 
demised  premises,  and  leave  them  unoccupied  and  un- 
cultivated, the  lessor  shall  have  the  like  remedies  to  be 
put  in  possession,  as  are  given  to  lessors  against  tenants 
who  hold  over. 

Steadman  v.  Jones,  65—388. 

Sec.  1778.  Costs  to  .successful  party.  1868-»9,  c.  156, 
s.  29. 

In  cases  under  this  chapter,  the  successful  party  shall 
recover  costs. 

Sec.  1779.  "What  forms  sufficient.    1868-'9,  c.  156,  s.  33. 

The  following  forms,  or  any  substantially  similar, 
shall  be  sufficient  in  proceedings  for  the  summai-y  eject- 
ment of  tenants  holding  over,  and  others,  under  this 
chapter. 

Sec.  1780.  Forms  of  proceeding  before  a  justice  of  the 
peace  for  the  summai-y  ejectment  of  a  tenant  holding 
over.    186S-'9,  c.  156,  s.  34.     1869-'70,  c.  212. 


[No.  1.] 

FORM  OF  THE  OATH  OF  PLAINTIFF. 

North  Caiiolina County. 

A.  B.,  Plaintiff,     ^ 

(Kiainst  \  Summary  proceedings  in  ejectment. 

C.  V).,  Defendant.  ) 

Tlie  i.Uunliff  (his  agent  or  attorney)  maketli  oath  that  the  defendant 
entered  into  llie  possession  of  a  piece  of  land  in  said  county,  (deseiibe  llie 
hmd.)  as  a  lessee  of  tlicplaintifT,  (or  as  lessee  of  E.  F.,  who,  after  the  niaUing 
of  the  lease,  assigned  his  estate  to  the  plaiiitilf,  or  oilierwisc,  as  llie  fact 
may  be,)  that  the  term  of  the  defendant  expired  on  the day  of 


Chap.  40.]    LANDLORD  AND  TENANT.  675 

18 (or  that  his  estate  has  ceased  hy  non-payment  of  rent,  or  otherwise, 

as  Uic  fact  may  bo,)  that  the  plaintiff  has  demanded  tlic  possession  of  the 
premises  of  the  defendant,  who  refused  to  surrender  it,  hut  holds  over; 
that  the  estate  of  tlie  pluinliffs  is  still  subsisting,  and  the  plaintiff  asks  to  be 
put  in  posses-ion  of  the  pi-emises. 

The  plaintiff  claims dollars  for  rent  of  the  premises  from  the 

day  of 18 to  tlie day  of 18 ;  and  also, 

dollars  for  the  occupation  of  the  premises  since  the day  of 

18 to  tlie  date  hereof. 

A.  B.,  Plaintiff. 

Subscribed  and  sworn  to  before  me,  this day  of ,  18 

J.  K.,  /.  P. 


[No.  2.] 

FORM  OF  SUMMONS  TO  BE  ISSUED  BY  THE  JUSTICE. 

North  Carolika, County. 

A.  B.,  Plaintiff,    ) 

aqainst  \  Summary  proceedings  in  ejectment. 

C.  D.,  Defendant.  ) 

A.  B.  (his  agent  or  attorney,)  having  made  and  subscribed  before  me 
the  oath,  a  copy  of  which  is  annexed,  you  are  required  to  appear  before 

me,  or  some  otiier  justice  of  the  peace  of  said  county,  on  the day  of 

,  18. . . .,  at ,  then  and  there  to  answer  the  complaint; 

otherwise  judgrnent  will  be  given  that  you  be  removed  from  the  possession 
of  the  premises. 

"Witness  mv  hand  and  seal  this day  of ,  18 

J.  K.,  J.  P..   [SEAL.] 

ToC.  D.,  defendant. 

The  ju<;licc  attaches  the  oath  of  the  plaintiff  to  the  summons  and  de- 
livers ihcm,  and  a  copy  of  both  of  them,  to  the  officer,  and  makes  the  fol- 
lowing entry  on  his  docket,  or  varied  according  to  the  facts. 


[No.  3.] 

FORM  OF  ENTRY  MADE  BY  JUSTICE. 

A.  B.,  Plamtiff,     1  gmnfnary  proceedinss  in  ejectment  for  (describe  tlie 
C.D.rffidant.[         ^'•— )• 

Oath  of  plaintiff  (his  agent  or  attorney)  filed  on  the day  of , 

18 

Plaintiff  claims dollars  for  rent,  from to ,  and 

dolars  for  occupation  from to 

Summons  issued  the day  of 18 ,  to ,  constable 

{or  slicrilT,  as  tlie  case  may  be). 

The  officer  serves  the  summons  and  returns  it  to  the  justice  with  the  oath 
of  the  plaintiff,  and  with  his  return  indorsed. 


676  LANDLORD  AND  TENANT.     [Cila.p.  40. 

[No.  4.] 

FORM  OF  RETURN  OF  OFFICER. 

On  this  day  I  served  the  within  summons  on  tlie  defendant  C  D  by 
delivering  him  a  copy  tliereof,  and  of  the  o:ith  of  A.  B.  annexed  (or  hy 
leaving  a  copy  thereof  and  the  outh  of  A.  B.  at  the  usual  place  of  resi- 
dence of  the  defendant  C.  D.,  with  an  adult  found  there.)  (or  tli^said  C 
U  uot  being  found  in  my  county,  and  having  no  usual  or  last  place  of  res- 
idence therein,)  (or  no  adult  person  being  found  at  his  usual  or  last  place 
ot  residence,)  by  posting  a  copy  of  the  summons  and  of  the  oath  of  A  B 
annexed,  on  a  conspicuous  part  of  the  premises  claimed.  ' 

rrx,          J        .  ,„  N.  M.,  Constable. 

The day  of ,18.... 

[No.  5.] 

FORM  OF  RECORD  TO  BE  ENTERED  BY  JUSTICE  ON  HIS 

DOCKET. 
A.  B.,  Plaintiff,      ) 

against  \-  Summary  proceedings  in  ejectment 

C.  D.,  Defendant.  ) 

It  appearing  that  the  summons,  with  a  copy  of  the  oath  of  the  plaintiff 
(Ins  agent  or  attorney)  was  duly  served  on  defendant*,  and  whereas  the 
defendant  fails  1o  appear  (or  admits  the  allegations  of  the  plaintiff)  I  ad- 
judge that  the  defendant  be  removed  from,  and  the  plaintiff  put  in  posses- 
sion of,  the  premises  described  in  the  oath  of  the  plainiiff.     I  also  adiuch-e 

that  the  plaintiff  recover  of  defendant dollars,  for  rent    from  the 

day  of ,18 to  the day  of .'..,18 

^^^  ■ dollars  for  damages  for  occupation  of  the  premises' from   the 

....day  of   ..    18....,  to  this  day,  and dollars  for  his 

costs;  the day  of 18 

If  the  defendant  admit  p.trt  of  the  allegations  of  plaintiff,  but  not  all 
the  judgment  must  be  varied  accordingly;  for  example:  follow  the  foren-o- 
ing  to  the  *,  and  then  proceed :  ° 


[No.  6.] 

And  whereas,  the  defendant  appears  and  admits  the  first  and  second 
allegations  of  the  plaintiff,  and  denies  the  residue;  and  whereas  both 
panics  waived  a  trial  by  jury,  I  heard  evidence  upon  the  matters  in'  issue 
and  find  (licre  state  I  lie  fiuding  on  the  matters  in  issue  separately). 

[Supposing  the  findings  arc  for  the  plaintiff,  the  record  would  proceed  1 
I  therefore  adjudge  that  the  defendant  (and  so  on  from  *). 


[No.  7.] 

If  either  party  shall  demand  a  jury  the  record  will  proceod  from*  as 
follows:  And  whereas,  the  plaintiff  (or  defendant,  as  the  cose  may 'he) 
demand  a  trial   of  the   issues  joined   by  a  jury,  I  caused   a  jury  to  be 


Chap.  40.]     LANDLORD  AND  TENANT.  677 

summoned,  lo  wit:  (licrc  give  the  names  of  the  jurors  summoned,)  from 
wliom  the  following  jury  was  duly  impaneled,  to  wit;  (here  state  the  names 
of  the  six  jurors  impaneled.)  who  find  (here  state  I  lie  verdict  of  jury;  if 
they  find  all  the  issues  for  the  plainlifT,  say  so;  if  any  particular  i.ssues,  say 
so;  also  state  Iho  sums  assessed  by  them  for  rent  and  for  occupation  to 
trial).     Therefore,  I  adjudge,  &c.,  as  in  form  No.  5,  from  *. 

If  cither  party  appeals,  the  justice  will  enter  on  Iiis  docket  as  follows, 
altering  the  entry  according  to  the  facts. 


[No.  8.] 

FORM  OF  RECORD  WHEN  AN   APPEAL  IS  PRATED. 
From  the  foregoing  judgment  the  plamtifE  (or  defendant,  as  the  case 
may  be)  jirayed  an  appeal  to  the  next  superior  court  of  said  county,  which 
is  allowed. 

[No.  9.] 

FORM  OP  BOND  TO  BE   GIVEN  BY  DEFENDANT    TO    SUSPEND 
EXECUTION. 

We,  the  undersigned, and ,  acknowl- 
edge ourselves  indebted  to in  the  sum  of dollars: 

Witness  our  hands  and  seals,  this  the day  of A.  D. 

18. . . . 

Whereas  on  the day  of ,   A.  D.  18 before 

a  justice  of  the  peace  for county,  A.  B.  recovered 

a  judgment  against  0.  D.  for and  for dollars 

damages  for  tlie  detention    of    said  real  estate   from  the    day  of 

T ,  A.  D.   18 to  the day  of A.  D. 

18. ... ;  and  whereas,  tlie  said ha prayed  an  appeal  to 

the  superior  court  from  said   judgment,  and  also   asks    that   execution 
on  said  judgment    shall    be    suspended:    now,   therefore,    if    the    said 

shall  pay  any  judgment,  which,  in  this  or  in  any  other 

action,   the  said   may  recover    for    the    rent    of    said 

premises,  and  for  damages  for  detention  thereof,   then    this    obligation 
shall  be  void,  otherwise  to  remain  in  full  force  and  virtue. 

ESEAL.] 
SEAL.] 
SEAI,.] 

[No.  10.] 

FORM  OF  EXECUTION  ON  A  JUDGMENT  FOR  THE  PLAINTIFF. 

A.  B.,  Plaintiff,      1 

against  [- County. 

C.  D.,  Defendant.  \ 

I'he  State  of  North  Carolina,  to  any  lawful  officer  of  said  county,  Gkeet- 
ikg: 

Touarc  hereby  commanded  to  remove  C.  D.  from,  and  put  A.  B.  in,  the 
possession  of  a  certain  piece  of  land  (here  describe  it  as  in  the  oath  of 


678  LANDLORD  AND  TENANT.      [Chap.  40. 

plaintiff).     You  shall  also  make  out  of  the  goods  and  chattels,  lands  and 

tenements,  of  s:iiil  defendant dollars,  with   interest  from  the  .... 

day  of 18 to  Ike   d.iy  of  payment,  which  the  pl.iinlift  lately 

recovered  of  the  defendant  as  rent  and  damages,  and  the  furtlier  sum  of 

dollars  as  costs,  in  said  action.     Return   this  writ,  with  a  statement 

of  your  proceedings  thereon,  before  me.  (Slate  when  and  where  according 
to  general  law  respecting  justices'  executions). 

Witness,  my  hand  and  seal,  this  . .'. .  day  of ,  18. . . . 

[seal.] 

[No.  11.] 

FORM  OF  SUPERSEDEAS  OF  EXECUTION. 

The  State  of  North  Carolina,  to  any  officer  having  an  execution  in  favor 
of  A.  B.,  plainlilf,  v.  C.  D.,  defendant,  in  a  summary  proceeding  in  eject- 
ment, signed  by ,  a  justice  of  the  peace. 

Tlie  defendant  having  given  bond  to  me,  as  required  by  Law,  on  his  ap- 
peal lo  tlie  superior  court  of county,  in  the  above  case,  you  will 

stay  further  proccfdings  upon  said  execution  and  immediately  return  the 
same  to  me,  with  a  statement  of  your  action  under  it. 

Witness  my  hand  and  seal  this day  of ,  18. . . . 

,  /.  P.  [SEAX.] 

[No.  12.] 

FORM  OF  CERTIFICATE  OF  JUSTICE  ON  RETURN  OF  THE  AP- 
PEAL TO  THE  SUPERIOR  COURT. 

The  annexed  are  the  original  oath,  summons  and  other  papers,  and  a  copy 
of  the  record  of  the  proceedings  in  the  case  of  a  summary  proceeding  in 
ejectment,  A.  B.,  plaintiff,  ®.  C.  D.,  defendant. 

J.  P. 

COSTS  IN  THE  CAUSE. 

(Here  state  all  the  costs,  to  whom  paid  or  due,  and  b^'  whom). 
All  the  papers  must  be  attached. 


Chap.  41.] 


LIENS. 


6T0 


CHAPTER  FORTY-ONE. 


LIENS. 


Sfxtion. 

1781.  Lions  on  buildings. 

1782.  Liens  on  crops. 

1783.  Personal  property  subject  to 
lien. 

1784.  Claims,  -where  filed. 

1785.  To  be  brought  Ijefore  justice 
of  the  peace  in  case  of  disa- 
greement. 

1786.  What  rights  not  affected. 

1787.  Costs  allowed  to  cither  party. 

1788.  Defendant  entitled  to  set-off. 

1789.  "When  notice  of  the  lien  shall 
be  filed;  clerk  to  keep  book  of 
liens;  clerk's  fee. 

1790.  Proceedings  to  enforce  lien;  in 
what  courts  and  in  what  time. 

1791.  Executions  to  issue  as  upon 
other  judgments. 

1792.  Order  in  which  liens  are  to  be 
paid. 

1793.  How  liens  discharged. 

1794.  No  execution  issued  by  justice 
of  the  peace  against  real  es- 
tate. 

1795.  When  remedy  by  attachment. 

1796.  Laborer's  share  of  crop  not  li- 
able to  execution  against  em- 
ployer. 


Section. 

1797.  Owners  of  stud  horses,  &c.,  to 
have  a  lien  on  colts. 

1798.  Colt  not  exempt  from  execu- 
tion. 

1799.  Liens  on  crops  in  favor  of  those 
making  advances. 

1800.  Warrant  to  sheriff  to  seize  the 
crops  on  aflidavit  that  the  lien 
is  about  to  be  defeated. 

1801.  Lien  given  to  sub  contractors, 
laborers,  and  persons  furnish- 
ing material  for  improvements 
upon  real  estate;  proviso. 

1802.  Notice  to  be  given  to  owner; 
liability  of  owner. 

1803.  Lien;  how  enforced. 

1804.  Liens  on  vessels  for  labor  in 
loading  and  discharging  cargo, 
&c. 

1805.  Liens,  how  filed;  notice  to  mas 
ter,  &c. 

1806.  Lien,  how  enforced. 

1807.  Judgment  against  contractor, 
&c.,  to  be  judgment  against 
the  master,  &c. 

1808.  Liens  due  sub-contractors,  &c., 
not  to  exceed  amount  due  con- 
tractor, &c. 


Sec.  1781.  Liens  on  buildings.    1869-'70,  e.  306,  s.  1. 

Every  building  built,  rebuilt,  repaired  or  improved, 
together  with  the  necessary  lots  on  which  said  building 
may  be  situated,  and  every  lot,  farm  or  vessel,  or  any 
kind  of  property,  real  or  personal,  not  herein  enumerat- 
ed, shall  be  subject  to  a  lien  for  the  payment  of  all  debts 
contracted  for  work  done  on  the  same,  or  material  fur- 
nished. 

Wilkic  V.  Bray,  71—205;  Gray  v.  Nash,  78—100;  Lanier  v.  Bell,  81— 
337;  Whitaker  v.  Smith,  81—340;  Reynolds  v.  Pool,  84—37;  Gumming  v. 
Bloodworlh,  87—83. 


680  LIENS.  [Chap.  41. 

Sec.  1783.  Liens  on  crops.     lS69-'70,  c.  206,  s.  2. 

The  lien  for  work  on  crops  or  faims  or  materials  given 
by  this  cliapter  shall  be  preferred  to  every  other  hen  or 
incumbrance,  which  attached  upon  the  property  subse- 
quent to  the  time  at  which  the  work  was  commenced  or 
the  materials  were  furnished. 

Warren  v.Woodard,  70-383;  Reynolds  v.  Pool.  84-37;  Curtis  v.  Cash, 
84 — 41;  Gumming  V.  Bloodworth,  87—83. 

Sec.  1783.  Personal  property  subject  to  lien.     1869-'70 
c.  206,  s.  3. 

Any  mechanic  or  artisan  who  shall  make,  alter  or  re- 
pair any  article  of  personal  property  at  the  request  of  the 
owner  or  legal  possessor  of  such  property,  shall  have  a 
hen  on  such  property  so  made,  altered  or  repaired  for  his 
]ust  and  reasonable  charge  for  his  work  done  and  mate- 
rial furnished,  and  may  hold  and  retain  possession  of  the 
sarne  until  such  just  and  reasonable  charges  shall  be  paid; 
and  if  not  paid  for  within  the  space  of  thirty  days,  pro- 
vided it  does  not  exceed  fifty  dollars,  if  over  fifty  dollars 
ninety  days,  after  the  work  shall  have  been  done,  such 
mechanic  or  artisan  may  proceed  to  sell  the  property  so 
made,  altered  or  repaired  at  public  auction,  by  giving 
two  weeks'  pubhc  notice  of  such  sale  by  advertising  in 
some  newspaper  in  the  county  in  which  the  work  may 
have  been  done,  or  if  there  be  no  such  newspaper,  then 
by  posting  up  notice  of  such  sale  in  three  of  the  most 
pubhc  places  in  the  county,  town  or  city  in  which  the 
work  may  have  been  done,  and  the  proceeds  of  the  said 
sale  shall  be  applied  first  to  the  discharge  of  the  said  lien 
and  the  expenses  and  costs  of  keeping  and  selling  such 
property,  and  the  remainder,  if  any,  shall  be  paid  over  to 
the  owner  thereof. 

Sec.   1784.  Claims  where  filed.    1869-'70,  c.  206,  s.  4 
1876-'7,  c.  53.  s.  1. 

All  claims  against  personal  property,  of  two  hundred 
dollars  and  under,  may  be  filed  in  the  office  of  the  nearest 
justice  of  the  peace;  if  over  two  hundred  dollars  or 
against  any  real  estate  or  interest  therein,  in  the  office 
of  the  superior  court  clerk  in  any  county  where  the  labor 
has  been  performed  or  the  materials  furnished;  but  all 
claims  shall  be  filed  in  detail,  specifying  the  materials 
furnished  or  labor  performed,  and  the  time  thereof.  If 
the  parties  interested  make  a  special  contract  for  such 
labor  performed,  or  if  such  material  and  labor  are  speci- 
fied in  writing,  in  such  cases  it  shall  be  decided  agreeably 


Chap.  41.]  LIENS.  681 

to  the  terms  of  the  contract,  provided  the  terms  of  such 
contract  do  not  affect  the  lien  for  such  labor  performed 
or  materials  furnished. 

Boyle  V.  Roberts,  71—130;  Cbadbourn  v.  Williams,  71—444;  Wray  v. 
Hariis,  77—77;  Lanier  v.  Bell,  81—337. 

Sec.  1785.  To  be  brought  before  justice  of  tbe  peace  in 
case  of  disagreemeut.    1869-'70,  c.  20C,  s.  5. 

Ill  case  of  any  disagreement  between  the  parties  inter- 
ested in  any  such  contract  it  may  be  brought  before  the 
nearest  justice  of  the  peace  by  the  plaintiff  or  defendant 
for  arbitration  or  otherwise,  as  the  said  justice  may  de- 
cide, provided  the  amount  claimed  does  not  exceed  two 
hundred  dollars;  if  over  that  amount,  all  claims  must  be 
filed  with  the  clerk  of  the  superior  court  and  entered  on 
the  calendar,  so  as  to  be  brought  before  the  court  at  the 
first  term  after  the  filing  of  any  claims.  The  judges  of 
the  superior  court  may  appoint  referees  to  ascertain  the 
proper  value  of  any  labor  performed  on  any  building  or 
farm  or  any  material  furnished  or  specified  in  the  appli- 
cation at  the  time  of  plaintiff  or  defendant  filing  his 
petition. 

Sec.  1786.  What  rights  not  aflfected.  1869-'70,  c.  206, 
s.  6. 

_  Nothing  in  this  chapter  shall  be  construed  to  affect  the 
rights  of  any  person  to  whom  any  debt  may  be  due  for 
any  work  done  for  which  priority  of  claim  is  filed  with 
the  proper  officer. 

Sec.  1787.  Costs  allowed  to  either  party.     1869-'70,  c. 
206,  s.  7. 
Costs  are  aliowed  to  either  party  upon  the  rules  estab- 
lished by  law  in  actions  arising  on  contracts,  made  under 
this  code. 

Sec.  1788.  Defendant  entitled  to  set-off.  1869-'70,  c. 
206,  s.  8. 

The  defendant  in  any  suit  to  enforce  the  lien  shall  be 
entitled  to  any  set-off  or  claim  arising  between  the  con- 
tractors during  the  performance  of  the  contract. 

Sec.  1 789.  When  notice  of  the  lien  shall  be  filed;  clerk  to 
keep  book  of  liens;  clerk'.s  fee.  18«8-'9,  c.  117,  s.  4. 
1870-'7,  c.  53,  s.  2.     1881,  c.  65.     1883,  c.  lOl. 

_  Notice  of  the  lien  shall  be  filed,  as  hereinbefore  pro- 
vided, at  any  time  within  twelve  months  after  the  com- 


682  LIENS.  [Chap.  41 

pletion  of  the  labor,  or  the  final  furnishing  the  materi^ils, 
or  the  gathering  of  the  ci-ops:  Provided,  that  in  cases  of 
liens  on  real  estate,  or  any  intei-est  therein,  given  by  this 
chapter,  the  notice  shall  be  filed  in  the  office  of  the  supe- 
rior court  clerk  within  twelve  months  after  the  completion 
of  the  labor  or  the  final  furnishing  of  the  matei-ials. 
And  the  clerk  of  the  superior  court  shall  keep  a  book  in 
which  he  shall  enter  all  notices  of  liens  filed  in  his  office. 
He  shall  provide  an  index  thereto  of  the  names  of  the 
claimant  and  the  party  against  whom  it  is  filed;  and  for 
his  services,  the  clerk's  fee  shall  be  ten  cents  in  each  case. 

Boyle  V.  Roberls,  71—130. 

Sec.  1790.  Proceedings  to  enforce  lien;  in  what  courts 
and  in  what  time.  1868-'9,  c.  117,  s.  7.  1876-'7,  c. 
350.     1876-'7,  c.  251. 

Proceedings  to  enforce  the  lien  created,  must  be  com- 
menced in  the  court  of  a  justice  of  the  peace,  and  in  the 
superior  court,  according  to  the  jurisdiction  thereof, 
within  six  months  from  the  date  of  fifing  the  notice  of 
the  lien:  Provided,  that  if  the  debt  be  not  due  within 
six  months  but  becomes  due  within  twelve  months,  suit 
may  be  brought  or  other  proceedings  instituted  to  en- 
force the  lien  in  thirty  days  after  it  is  due,  and  this  shall 
apply  to  existing  liens  and  proceedings. 

Boyle  V.  Roberts,  71—130;  Gay  v.  Nash,  84—333. 

Sec.  1701.  Executions  to  issue  as  upon  other  judgments. 
1868-'9,  c.  117,  s.  9. 

Upon  judgment  rendered  in  favor  of  the  claimant,  an 
execution  for  the  collection  and  enforcement  thereof 
shall  issue  in  the  same  manner  as  upon  other  judgments 
in  actions  arising  on  contract  for  the  recovery  of  money 
only,  except  that  the  execution  shall  direct  the  officer  to 
sell  the  right,  title  and  interest  which  the  owner  had  in 
the  premises  or  the  crops  thereon,  at  the  time  of  filing 
notice  of  the  lien,  before  such  execution  shall  extend  to 
the  general  property  of  the  defendant. 

Boyle  V.  Roberts,  71—130. 

Sec.  1792.  Order  in  which  liens  arc  to  be  paid.  1868-'9, 
C.117,  s.  11. 

The  liens  created  and  establ:shed  by  this  chapter  shall 
be  paid  and  settled  according  to  the  priority  of  the  notice 
of  the  lien  filed  with  the  justice  or  the  clerk. 


Chap.  41  ]  LIENS.  .  683 

Sec.  1793.  How  liens  discharged.    1868-'9,  c.  117,  s.  12. 

All  liens  created  by  this  chapter  may  be  discharged  as 
follows: 

(1)  By  filing  with  the  justice  or  clerk  a  receipt  or  ac- 
knowledgment that  the  lien  has  been  paid  or  discharged, 
signed  by  the  claimant. 

(2)  By  depositing  with  the  jnstice  or  clerk  money  equal 
to  the  amount  of  the  claim,  which  money  shall  be  held 
by  said  officer  for  the  benefit  of  the  claimant. 

(3)  By  an  entry  in  the  lien  docket  that  the  proceedings 
on  the  part  of  the  claimant  to  enforce  the  lien  have  been 
dismissed,  or  a  judgment  rendered  against  the  claimant 
in  such  action. 

(4)  By  a  failure  of  the  claimant  to  commence  an  action 
for  the  enforcement  of  the  lien  within  six  months  from 
the  notice  of  lien  filed. 

Sec.  1794.  No  executlou  issued  by  justice  of  the  peace 
against  real  estate.    1868-'9,  c.  117,  s.  13. 

No  execution  issued  by  a  justice  of  the  peace,  under 
this  chapter,  shall  be  enforced  against  real  estate  or  any 
interest  therein,  but  justice's  judgments  may  be  docketed 
on  judgment  docket  of  superior  court  for  the  purpose  of 
selling  such  estate  or  any  interest  therein. 

Sec.  1795.  When  remedy  by   attachment.     1868-'9,  c. 
117,  s.  14. 

In  all  cases  where  the  owner  or  employer  attempts  to 
remove  the  crop,  houses  or  appurtenances  from  the 
premises,  without  the  permission,  or  with  the  intent  to 
defraud  the  laborer  of  his  lien,  the  claimant  may  have  a 
remedy  by  attachment. 

Brogden  v.  Piivett,  67 — 45. 

Sec.  1796.  Laborer's  share  of  the  crop  not  liable  to  exe- 
cutlou against  employer.    1866-'7,  c.  59. 

Whenever  servants  and  laborers  in  agriculture  shall  by 
their  contracts  orally  or  in  writing,  already  or  hereafter 
made,  be  entitled,  for  wages,  to  a  part  of  the  crops  culti- 
vated by  them,  such  part  shall  not  be  subject  to  sale 
under  executions  against  their  employers,  or  the  owners 
of  the  land  cultivated. 

Sec.  1797.  Owners  of  stud-horses,  &c.,  to  have  a  lieu  on 
colts.    1872-'3,  c.  94,  s.  1. 

In  aU  cases  whei'e  the  o'^ner  or  auy  agent  for  or  em- 
ployee of  the  owner  of  any  mare  or  jennet  shall  tui-n 


684  LIENS.  [Chap.  41. 

the  sanje  to  a  stud-horse  or  jack  for  the  purpose  of  rais- 
ing colts,  tlie  price  charged  for  the  season  of  the  stud- 
horse or  jack  shall  be  constituted  a  lien  on  the  colt  until 
the  price  so  charged  for  the  season  is  paid  by  the  owner 
of  the  colt,  his  agent  or  employee. 

Sec.  ]  798.  Colt  not  exempt  from  execution.  1872-'3,  e. 
94,  s.  2.     1879,  c.  47. 

The  colt  shall  not  be  exempt  from  execution  for  the 
payment  of  said  season  price  by  reason  of  the  operatioii 
of  the  personal  property  exemption:  Provided,  that  the 
person  claiming  such  lien  on  the  colt  shall  close  the  same 
within  twelve  months  from  the  foahng  of  the  colt. 

Sec.  1799.  Lien  on  crops  in  favor  of  those  making  ad- 
vances.   1866-'7,  c.  1,  s.  1.    1872-'3,  c.  133,  s.  1. 

If  any  person  shall  make  any  advance  either  in  money 
or  supplies,  to  any  person  who  is  engaged  in,  or  about  to 
engage  in  the  cultivation  of  the  soil,  the  pereon  so  mak- 
ing such  advance  shall  be  entitled  to  a  lien  on  the  crops 
which  may  be  made  during  the  year  upon  the  land  in 
the  cultivation  of  which  the  advances  so  made  have  been 
expended,  in  preference  to  all  other  liens  existing  or 
otherwise,  to  the  extent  of  such  advance:  Provided,  an 
agreement  in  writing  shall  be  entered  into  before  any 
such  advance  is  made  to  this  effect,  in  which  shall  be 
specified  the  amount  to  be  advanced,  or  in  which  a  limit 
shall  be  fixed  beyond  which  the  advance,  if  made  from 
time  to  time  dm-ing  the  year,  shall  not  go;  which  agree- 
ment shall  be  recorded  in  the  office  of  the  register  of  the 
county  in  which  the  person  to  whom  the  advances  are 
made  I'esides,  within  thirty  days  after  its  date. 

Warren  v.  AVoodard,  70—383;  Harrison  v.  Ricks,  71 — 7;  Clarke  v. 
Farrar,  74—686;  Tliomas  v.  Campbell,  74—787;  Gay  v.  Nash,  78—100; 
Womble  v.  Leacli,  83 — 84;  Ray  v.  Pearce,  8t — 485;  Cottinghain  v.  Mc- 
Kay, 86— 241;'*Patapsco  v.  Magce,  86—350. 

Sec.  1800.  Warrant  to  sheriffs  to  seize  the  crops  on  aflS- 
davit  that  the  lien  is  about  to  be  defeated;  proviso. 
1866-'7,  c.  1,  s.  2.     1872-'3,  c.  133,  s.  2.     1883,  c.  88. 

If  the  person  making  such  advances  shall  make  an 
affidavit  before  the  clerk  of  the  superior  court  of  the 
county  in  which  such  crops  are,  that  the  amount  secured 
by  said  lien  for  such  advances,  or  any  part  thereof,  is  due 
and  unpaid,  that  the  person  to  whom  such  advances  have 
been  made,  or  any  other  person  having  the  said  crop  in 
his  possession,  is  about  to  sell  or  dispose  of  his  crop,  or  in 


Chap.  41.]  LIENS.  685 

any  other  way  is  about  to  defeat  the  lien  hereinbefore 
provided  for,  accompanied  with  a  statement  of  the 
amount  then  due,  it  shall  be  lawful  for  him  to  issue  his 
warrant,  directed  to  any  of  the  sheriffs  of  this  state,  re- 
quiring them  to  seize  the  said  crop,  and,  after  due  notice, 
sell  tlie  same  for  cash  and  pay  over  the  net  proceeds 
thereof,  or  so  much  thereof  as  may  be  necessary  in  the 
extinguishment  of  the  amount  then  due:  Provided,  that 
if  the  person  to  whom  such  advances  have  been  made, 
shall,  within  thirty  days  after  such  sale  has  been  made, 
give  notice  in  writing  to  the  sheriff,  accompanied  with 
an  affidavit  to  this  effect,  that  the  amount  claimed  is 
not  justly  due,  then  it  shall  be  the  duty  of  the  said  sheriff 
to  hold  the  proceeds  of  such  sale  subject  to  the  decision 
of  the  court,  upon  an  issue  which  shall  be  made  up  and 
set  down  for  trial  at  the  next  succeeding  term  of  the 
superior  court  for  the  county  in  which  the  person  to 
whom  such  advances  have  been  made  resides:  Provided 
further,  that  the  lien  provided  in  this  and  the  preceding 
section  shall  not  affect  the  rights  of  landlords  to  tlieir 
proper  share  of  rents. 

Harrison  v.  Kicks,  71—7;  Gay  v.  Nash,  78—100;  Gay  v.  Nash,  84—333; 
Cottingham  v.  McKay,  86—241. 

Sec,  1801.  liien  given  to  sub-contractors,  laborers  and 
persons  furnishing  material  for  improvements  upon 
real  estate;  proviso.    1880,  c.  44,  s.  1. 

All  sub  contractors  and  laborers  who  are  employed  to 
furnish  or  who  do  furnish  material  for  the  building,  re- 
pairing or  altering  any  house  or  other  improvement  on 
real  estate,  shaU  have  a  lien  on  said  house  and  real  estate 
for  the  amount  of  such  labor  done  or  material  furnished, 
which  hen  shaU  be  preferred  to  the  mechanics'  lien  now 
provided  by  law,  when  notice  thereof  shall  be  given  as 
hereinafter  provided:  Provided,  that  the  sum  total  of  all 
the  liens  due  sub-contractors  and  material  men  shall  not 
exceed  the  amount  due  the  origmal  contractor  at  the 
time  of  notice  given. 

Sec.  1802.  Notice  to  be  given  to  owner;  liability  of  owner. 
1880,  c.  44,  s.  2. 

Any  subcontractor,  laborer  or  material  man,  who 
claims  a  hen  as  provided  in  the  preceding  section,  may 
give  notice  to  the  owner  or  lessee  of  the  real  estate  who 
makes  the  contract  for  such  building  or  improvement  at 
any  time  before  the  settlement  with  the  contractor,  and 
if  the  said  owner  or  lessee  shall  refuse  or  neglect  to  re- 


686  LIENS.  [Chap.  41. 

tain  out  of  the  amount  due  the  said  contractor  under  the 
contract  as  much  as  shall  be  due  or  claimed  by  the  sub- 
contractor, laboi-er  or  material  man,  the  sub-contractor 
laborer  or  material  man  may  proceed  to  enforce  his  lien' 
and  dtter  such  notice  is  given,  no  payment  to  the  con- 
tractor shall  be  a  credit  on  or  discharge  of  the  lien  herein 
provided. 

Sec.  1803.  liien,  bow  enforced.    1880,  c.  44,  s.  3. 

The  lien  given  by  the  two  preceding  sections  may  be 
enforced  as  provided  for  other  liens  in  this  chapter 
except  when  it  is  otherwise  provided  in  said  sections.      ' 

Sec.  1804.  Liens  on  vessels  for  labor  in  loading  or  dis- 
cbarging  cargo,  &c.    1881,  c.  356,  s.  1. 

Every  vessel,  her  tackle,  apparel  and  furniture  shaU 
be  subject  to  a  lien  for  all  labor  done  by  contractors  or 
others  m  loading  or  discharging  the  cargo  of  such  vessel, 
and  also  for  all  labor  done  by  any  sub-contractor  or 
laborer  employed  in  discharging  or  loading  any  such 
vessel,  when  such  labor  is  done  under  contract  with  a 
contractor  or  stevedore  who  may  be  employed  by  the 
master,  agent  or  owner  of  such  vessel. 

Sec.  1805.  Liens,  bow  filed;  notice  to  master.  &c.    1881 
c.  356,  s,  2. 

The  liens  provided  for  in  the  preceding  section  shall  be 
filed  as  IS  provided  for  other  liens:  the  sub-contractor  or 
laborer  may  give  notice  to  the  master,  agent  or  owner  of 
such  vessel,  that  the  contractor  or  stevedore  is  or  will  be- 
come indebted  to  him,  when  it  shall  be  the  duty  of  such 
master,  agent  or  owner  of  such  vessel  to  retain  out  of  the 
amount  due  to  such  contractor  or  stevedore  under  his 
contract,  as  much  as  shall  be  due  or  claimed  by  the  per- 
son giving  the  notice,  and  after  such  notice  is  given  no 
payment  to  the  contractor  or  stevedore  shall  be  a  credit 
on  or  a  discharge  of  the  lien  herein  provided. 

Sec.  1806.  Liens,  bow  enforced.    1881,  c.  366,  s.  3. 

The  enforcement  of  such  lien  shall  be  by  summons 
against  the  contractor  or  stevedore,  and  also  against  the 
master,  agent  or  owner  of  such  vessel,  who  made  the 
contract  with  such  contractor  or  stevedore,  if  over  two 
hundred  dollars,  to  be  issued  by  the  clerk  of  the  superior 
court,  and  if  under  two  hundred  dollai-s,  by  a  justice  of 
the  peace. 


I 


Chap.  42.]  MARRIAGE,  ETC.  ^^87 

sec.   1807.  Judgment  against   ^^-tj^^^'^g'-^  ^.^•a*^.';?^' 
iiul-ment  against  tlic  master,  &c,    1S»1,  c.  ^oo.  s 

TC^r"ment  against  the  contractor  or  stevedore  shall 
ine  jucignitm  dj^aii       -.^^i +i-,o  mn^fpr  aeent  or  owner 
also  be  a  judgment  agamst  the  ™astei    agem 

judgment. 

sec.  1808.  Liens  due  -'>-e<-*-?|-' ^^-b^C   *s?5!""' 
amount  duo  contractor,  &c      1881,  «•  ^oO    ^'^        ,  _ 

mmmm 

f  ™",„n„A  VnSo??"lt     eSf  at  ?he  time  of  the 
^^vice  Slummo"f«pon.such  master,  agent  o>- owner 

when  no  notice  has  been  given. 


CHAPTER  FORTY-TWO. 

MAREIAGE  AND  MAREIAGE  SETTLEMENTS,  AND 
THE  CONTRACTS  OF  MARRIED  WOMEN. 

Section. 

1816.  Penalty  ou  register  for  issuing 
license  unlawfully. 

1817.  Penalty  on  minister  or  officer 
marrying  without  a  license. 


Section. 

1809.  Who  may  contract  a  marriage. 

1810.  Wlio  may  not  contract  a  mar 

riage.  „•„,;„  raarivinil  wiinoui  a  jiuuuou. 

1811.  Degree     of     kmship     ^f '°  ^^^':  i,%f    deeds  to  keep  a 
..liich  persons  may  not  law- 1  1818.  he^utu  ^^^^^^^^^^ 

1819.  Penalty  on  register  for  failure 
to  record  license  ;ind  return 


fully  marry. 
1813.  What  necessary  to  a  valid  mar- 
riage. 

1813.  Ministers  not  to  celebrate  mar- 
riage unless  a  license  be  de- 
livered. 

1814.  License,  when  to  be  issued  by 
register  of  deeds. 


1820.  Marriage  settlements  void  as  to 
existing  creditors. 

1831.  Marriage  settlements  void  ex- 
cept from  registration. 

1833.  Husband  does  not  become  lia- 
ble for  wife's  debts. 


1S15.  Ponn  of    license;    pa-icuiars  |  ^^^^    SLuIJlS^rS continues 


MARRIAGE,  ETC. 


[Chap.  42. 


Section. 

1824.  In  actions  against  wife,  sum- 
mons served  ou  husband. 

1825.  Husband  may  be  ordered  to 
pay  costs,  or  discharged  from 
defence. 

1836.  Wife  not  capable  of  conlract- 
iiif);  without  her  husband,  un- 
less a  free  trader. 

1827.  Married  woman  may  become  a 
free  trader,  how;  written  form 
of  the  free  traders. 

1838.  A  free  trader  from  date  of 
registration. 

1829.  Copy  from  register's  books, 
evidence. 

1830.  How  she  may  cease  to  be  a 
free  trader;  public  notification 
given. 

1831.  Womau  living  separate  from 
her  husband  may  be  a  free 
trader;  wives  of  idiots  or 
lunatics  made  free  traders. 

1833.  Wife  abandoned  by  her  hus- 
band, &c.,  a  free  trader. 

1833.  Husband  jointly  liable  with 
wife  for  torts,  &c.,  committed 
by  wife. 

1834.  What  leases,  &c.,  by  wife 
valid,  and  what  not,  without 
private  examination. 


I  Section. 

1 1835.  What  contract  between  hus- 
band and  wife  not  to  be  valid 
unless  with  sanction  of  judge, 
or  other  officer. 

1S30.  What  contracts  between  hus- 
band and  wife  valid. 

1837.  Savings  from  separate  estate  of 
wife,  her  separate  proper- 
ty. 

1838.  Husband  tenant  by  the  court- 
esy, when. 

1839.  Power  of  married  woman  to 
make  a  will. 

1840.  Real  estate  of  wife  not  to  be 
sold  or  leased  without  her 
consent;  husband's  interest 
exempt  from  execution. 

1841.  Wife  may  insure  her  husband's 
life  for  her  separate  use. 

1843.  Persons,  formerly  slaves,  when 
deemed  to  have  been  mar 
ricd. 

1843.  Consequences  of  a  divorce  a 
■Binculo  on  the  property  of  the 
parties. 

1844.  Consequences  of  an  elopement 
with  an  adulterer. 

1845.  Consequences  of  a  husband 
separating  from  his  wife  and 
living  in  adultery. 


Sec.  1809.  Who  may  contract  a  marriajre.    1871-»2    o 
193,  s.  1.  s        xo<x    ^,  c. 

All  unmarried  male  persons  of  sixteen  years  or  un- 
wards,  of  age,  and  all  unmarried  females  of  fourteen 

Sec.  18 lO.  Who  may  not  contract  a  marriaffe.    1871-'2 
c.  193,  s.  2.  "»  •  .1    -, 

All  marriages  between  a  white  person  and  a  negro  or 
Indian,  or  between  a  white  person  and  a  person  of  negro 
or  Indian  descent,  to  the  third  generation,  inclusive  or 
between  any  two  persons  nearer  of  kin  than  first  cousins 
or  between  a  male  person  under  sixteen  years  of  age  and 
any  female,  or  between  a  female  person  under  fourteen 
years  ot  age  and  any  male,  or  between  persons  either  of 


Chap.  43.]  MAEEIAGE,  ETC.  689 

whom  has  a  husband  or  wife  hving  at  the  time  of  such 
maiTiage,  or  between  persons  either  of  whom  is  at  the, 
time  physically  impotent,  or  is  incapable  of  contracting 
from  want  of  will  or  understanding,  shall  be  void:  Pro- 
vided, that  no  mariiage  followed  by  cohabitation  and 
the  birth  of  issue  shall  be  declared  void  after  the  death 
of  either  of  the  parties  for  any  of  the  causes  stated  in 
this  section,  except  for  that  one  of  the  parties  was  a 
white  person  and  the  other  a  negro  or  Indian,  or  of 
negro  or  Indian  descent  to  the  third  generation  inclusive, 
and  for  bigamy. 

Brincgar  v.  Cliaffin,  3  Dev.,  108;  Irby  v.  'Wilson,  1  D.  &  B.  Eq.,  568; 
Johnson  v.  Kincade,  2  Ircd.Eq.,  470;  State  v.  Walters,  3  Ircd.,455;  State  v. 
Hooper,  5  Ircd.,  201;  Gatbings  v.  Williams,  Sired.,  487;  Koonccv.  Wallace, 
7  Jon.,  195:  State  v.  Hairston,  G3— 451;  State  v.  Ross,  70—242;  State  v. 
Kennedy,  76—251. 

Sec.  1811.  Degree  of  kinship  within  which  persons  may 
not  lawfully  marry.    1870,  c.  78. 

Whenever  the  degree  of  kinship  shall  be  estimated  with 
the  view  to  ascertain  the  right  of  kinspeople  to  marry, 
the  half-blood  shall  be  counted  as  the  whole-blood;  Pro- 
vided, that  nothing  herein  contained  shall  be  so  con- 
strued as  to  invalidate  any  marriage  heretofore  con- 
tracted in  case  where  by  counting  the  half-blood  as  the 
whole  blood  the  persons  contracting  such  marriage  would 
be  nearer  of  kin  than  first  cousins;  but  in  every  such 
case  the  kinship  shall  be  ascertained  by  counting  relations 
of  the  half-blood  as  being  only  half  so  near  kin  as  those 
of  the  same  degree  of  the  whole  blood. 

Sec.  1812.  "What  necessary  to  a  valid  marriage.    1871-'2, 
c.  193,  s.  3. 

The  consent  of  a  male  and  female  person  who  may  law- 
fully marry,  presently  to  take  each  other  as  husband  and 
wife,  freely,  seriously  and  plainly  expressed  by  each  in 
the  presence  of  the  other,  and  in  the  presence  of  an  or- 
dained minister  of  any  religious  denomination  or  of  a 
justice  of  the  peace,  and  the  consequent  declaration  by 
such  minister  or  officer  that  such  persons  are  man  and 
wife,  shall  be  a  valid  and  sufQcient  marriage;  Provided, 
that  the  right  of  marriages  among  the  Society  of  Friends, 
according  to  a  form  and  custom  peculiar  to  themselves 
shall  not  be  interfered  with  by  the  provisions  of  this  or 
any  other  section  of  this  chapter. 

Weaver  v.  Crycr,  1  Dev.,  337;  State  v.  Patterson,  Sired.,  346;  State  v. 
Robbins,  G  Ired.,  23;  State  v.  Bray,  13  Ircd.,  289;  Cunuinggim  v.  Mullett,  1 


690  MAREIAGE,  ETC.  [Chap.  42. 

"Winst.,  467;  Cooke  v.  Cooke,  PMl.,  583;   State  v.  Ta-cha-na  tab,  04— GI4- 
Jones  V.  Reddick,  79—390. 

Sec.  1813.  Ministers  not  to  celebrate  marriage  unless  a 
license  be  delivered.    1871-'2,  c.  193,  s.  4. 

No  minister  or  officer  mentioned  in  the  preceding  sec- 
tion shall  perform  a  ceremony  of  marriage  between  any 
two  persons,  or  shall  declare  them  to  be  man  and  wife, 
until  there  shall  be  delivered  to  him  a  license  for  the  mar- 
riage of  the  said  persons,  signed  by  the  register  of  deeds 
of  the  county  in  which  the  marriage  is  intended  to  take 
place,  or  by  his  lawful  deputy. 

Drake  v.  McMinn,  5  Ired.,  639. 

Sec.  1814.  License,  when  to  be  issued  by  register  of  deeds. 
1871-'2,  c.  193,  s.  5. 

Every  register  of  deeds  shall,  upon  application,  issue  a 
license  for  the  marriage  of  any  two  persons  :  Provided, 
it  shall  appear  to  him  probable  that  there  is  no  legal  im- 
pediment to  such  marriage:  Provided,  further,  that  wheie 
either  party  to  the  proposed  marriage  shall  be  under  eight- 
een years  of  age,  and  shall  reside  with  the  father,  or 
mother,  or  uncle,  or  aunt,  or  brother,  or  elder  sister,  or 
shall  reside  at  a  school,  or  be  an  orphan  and  reside  with  a 
guardian,  the  register  shall  not  issue  a  license  for  such 
marriage  until  the  consent  in  writing  of  the  relation  with 
whom  such  infant  resides,  or,  if  he  or  she  resides  at  a 
school,  of  the  person  by  whom  said  infant  was  placed  at 
school,  and  under  whose  custody  and  control  he  or  she 
is,  shall  be  delivered  to  him,  and  such  written  consent 
shall  be  filed  and  preserved  by  the  register. 

State  V.  Snuggs,  85—541. 

Sec.  1815.  Form  of  license;  particulars  of  form.    1871-'2, 
c.  193,  s.  6. 

License  shall  be  in  the  following  or  some  equivalent 
form  : 

"  To  any  ordained  minister  of  any  religious  denomination,  or  to   any 

justice  of  the  peace  for county.     A.  B.  having  applied  to  me.  for 

a  licinse  for  the  marriage  of  C.  D.,  (tlie  name  of  the  man  to  be  written  in 
full)  of  (here  slate  his  residence,)  aged  ....  years,  (color,  as  the  case  may 
be,)  thi'  son  of  (here  state  the  father  and  mother,  if  known,  slate  wliolher 
they  are  living  or  dead,  and  tlieir  resitlence,  if  known;  if  any  of  these  facts 
are  not  known,  so  slate.)  and  E.  F.,  (write  ihe  name  of  the  woman  in  fidl) 
of  (liere  slate  her  residence,)  aged  (liere  slate  Ihe  number  of)  years,  colorOis 
the  case  may  be.)  the  daughter  of  (liere  stale  the  names  and  residence  of  Ihe 
parents,  if  known,  as  is  required  above  with  respect  to  ihe  man.)  (If  either 
of  the  parties  shall  be  under  eighteen  years  of  age,  the  license  shall  hero 


I 


Chap.  42.]  MAREIAGE,  ETC.  691 

contain  tliefollowinff:)  And  the  wrilten  consent  of  G.  H..  fatOicr  (or  mothor. 
&c  «3tl^casemay°be)to  the  proposed  marriage  havmg  been  filed  wilb 
mc\rnd  hcTcbeTngnolegalimpedimcntto  such  marriage  known  to  me. 
volI  areheiebv  authorized? at  any  time  will)in  one  year  I  rom  the  date  hereof, 
o  Sra  e  U,rproposed  manlagc  at  any  place  within  the  said  county 
You  are  requi  ed  wi  hin  two  months  after  you  shall  have  cc  ebrated  such 
ma  rh  4  to  return  this  license  to  me,  at  my  office,  w  th  >-0">7;S"ature  sub- 
Sed  to  the  certificate  under  this  license,  aud;vith  the  blanks  the.ein 
fiTl.  according  to  the  facts,  under  penalty  of  forfeiting  two  hundred  dol- 
lars to  the  use1)f  any  person  who  shall  sue  for  the  same.     Issued  th.s  .... 

day  of ,18....  j^   jj^ 

Register  of  Deeds  of county." 

Certificate  to  be  fiUed  up  and  signed  by  the  minister  or 
officer  celebrating  the  marriage,  and  also  to  be  signed  by 
one  or  more  witnesses  present  at  the  marriage,  who  shall 
add  to  their  names  their  places  of  residence: 

"I  N  O  an  ordained  minister  of  Giere  state  to  what  religious  denomi- 
nation, or  .i,7st>ce  of  the  peace,  as  the  case  ^.^yJ^..)unaod  >■'  n^f  m^o^^y 
rhere  name  the  parties,)  the  parties  licensed  above,  on  the  ... .  aay  oi  ... . ._. , 
18  ..?,  at  the  house  oif  P.  R..  in  (here  name  the  town,  if  any,  the  township 
and  county,)  according  to  law.  ^^^^  ^ 

Witnesses  present  at  the  marriage: 
S.  T.,  of"  (liere  give  the  residence.) 

Sec.  1816.  Penalty  on  register  for  issuing  license  unlaw- 
fully.    1871-'3,  0.193,8.7. 

Every  register  of  deeds  who  shall  knowingly  or  with- 
out reasonable  inquiry  issue  a  license  for  the  marriage  ot 
any  two  persons  to  which  there  is  any  lawful  impedi- 
ment or  where  either  of  the  persons  is  under  the  age  ot 
eio-hteen  years,  without  the  consent  required  by  section 
eighteen  hundred  and  fourteen,  shall  forfeit  and  pay  two 
hundred  dollars  to  any  person  who  shall  s'le  for  the  same. 

Holt  V.  McLean,  75-347;  State  v.  Snuggs,  85-541;  Nonnan  v.  Dunbar, 
8  Jon.,  317. 

Sec.  1817.  Penalty  on  minister  or  officer  marrying  with- 
out a  license.    187 1-'2.  c.  193,  s.  8. 

Every  minister  or  officer  mentioned  in  section  eighteen 
hundred  and  twelve,  who  shall  marry  any  couple 
without  a  license  being  first  dehvered  to  him,  as  re- 
quired by  this  chapter,  or  after  the  expiration  of  such 
license  or  who  shall  fail  to  return  such  hcense  to  the 
register  of  deeds  within  two  months  after  any  marriage 
celebrated  by  virtue  thereof,  with  the  certificate  append- 
ed thereto  duly  filled  up  and  signed,   shall  forfeit  and 


692  MAKRIAGE,  ETC.  [Chap.  42. 

pay  two  hundred  dollars  to  any  person  who  shall  sue 
therefor,  and  shall  also  be  guilty  of  a  misdemeanor. 

Norman  v.  Duubar,  8  Jon.,  317. 

Sec.  1818.  Register  of  deeds  to  keep  a  book  of  marriages. 
1871-'2,  c.  193,  s.O. 

Every  register  of  deeds  shall  keep  a  book  (which  shall 
be  furnished  on  demand  by  the  board  of  county  commis- 
sioners of  his  county)  on  the  first  page  of  which  shall  be 
written  or  printed: 

"Record  of  marriage  licenses  and  of  returns  thereto,  for  the  county  of 

fiom  tlic day  of ,  18. . .,  to  the day  of 

,  18. ..,  both  inclusive." 


In  said  book  shall  be  entered  alphabetically,  according 
to  the  names  of  the  proposed  husbands,  the  substance  of 
each  marriage  license  and  the  return  thereupon  as  fol- 
lows: The  book  shall  be  divided  by  lines  with  columns 
which  shall  be  properly  headed,  and  in  the  first  of  these 
beginning  on  the  left,  shall  be  put  the  date  of  issue  of 
the  license;  in  the  second,  the  name  in  full  of  the  intend- 
ed husband,  with  his  residence;  in  the  third  his  age;  in 
the  fourth,  his  color;  in  the  fifth,  the  name  in  full  of  the 
intended  wife,  with  her  residence;  in  the  sixth,  her  age; 
in  the  seventh,  her  color;  in  the  eighth,  the  name  and 
title  of  the  minister  or  officer  who  celebrated  the  mar- 
riage; in  the  ninth,  the  day  of  the  celebration;  in  the 
tenth,  the  place  of  the  celebration;  in  the  eleventh,  the 
names  of  all  or  at  least  three  of  the  witnesses  who  signed 
the  return  as  present  at  the  celebration.  The  original 
hcense  and  return  thereto  shall  be  filed  and  preserved. 

Sec.  1819.  Penalty  on  register  for  failure  to  record  license 
and  return.    1871-'3,  c.  193,  s.  10. 

Any  register  of  deeds  who  shall  fail  to  record,  in  the 
manner  above  prescribed,  the  substance  of  any  marriage 
license  issued  by  him,  or  who  shall  fail  to  record,  in  the 
manner  above  prescribed,  the  substance  of  any  return 
made  thereon,  within  ten  days  after  such  return  made, 
shall  forfeit  and  pay  two  hundred  dollars  to  any  person 
who  shall  sue  for  the  same. 

Norman  v.  Dunbar,  8  Jon. ,  317. 

Sec.  1820.  Marriage  settlements  void  as  to  existing  credit- 
ors.   1871-'3,  c.  193,  s.  11. 

Every  contract  and  settlement  of  property  made  by 


Chap.  42.]  MAREIAGE,  ETC.  693 

any  man  and  woman  in  consideration  of  a  marriage  be- 
tween them,  for  the  benefit  of  such  man  or  woman,  or  of 
their  issue,  wliether  the  same  be  made  before  or  after 
marriage,  shall  be  void  as  against  creditors  of  the  parties 
making  the  same  respectively,  existing  at  the  time  of 
such  marriage,  if  the  same  is  antenuptial,  or  at  the  time 
of  making  such  contract  or  settlement,  if  the  same  is 
post-nuptial. 
Hardy  v.  Holly,  84—661, 

Sec.  1821.  Marriage  settlements  void  except  from  regis- 
tration.    1871-'2.  c,  193.  s.  12. 

Every  such  contract  and  settlement  of  property  shall 
be  void  as  against  the  creditors  of  or  purchasers  from  the 
husband  and  wife  respectively,  as  to  any  lands,  tene- 
ments, or  hereditaments,  and  chattels  real,  conveyed  or 
agreed  to  be  conveyed  thereby,  except  from  the  registra- 
tion thereof  in  the  county  in  which  such  lands,  tene- 
ments, hereditaments  or  chattels  real  lie,  and  as  to  any 
personal  property  conveyed  or  agreed  to  be  conveyed, 
thereby,  except  from  the  registration  in  the  county  in 
which  such  husband  and  wife  at  the  marriage,  or  at 
the  making  thereof  if  after  the  marriage,  shall  reside. 

Sec.  1822.  Husband  does  not  become    liable   for    wife's 
debt.    1871-'2,  c.  193,  s.  13. 

No  man  by  marriage  shall  incur  any  liabihty  for  any 
debts  owing,  or  conti-acts  made,  or  for  wrongs  done  by 
his  wife  before  the  marriage. 

Sec.  1823.  The  liability  of  wife  continues.     1871-'2,  c. 
193,  s.  14. 

The  liability  of  a,  feme  sole  for  any  debts  owing,  or  con- 
tracts made  or  damages  incurred  by  her  before  her  mar- 
riage, shall  not  be  impaired  or  altered  by  such  marriage. 

Sec.  1824.  In  actions  against  wife,  summons  to  be  served 
on  husband.     1871-'2,  c.  193,  s.  15. 

In  all  actions  brought  against  a  married  woman,  who 
is  not  a  free  trader,  (as  hereinafter  jirovided  for,)  the  sum- 
mons shall  be  served  upon  the  liusband  also,  and  on  mo- 
tion to  the  court  in  which  the  action  is  pending,  he 
may  be  allowed,  with  her  consent,  to  defend  the  same 
in  her  name  and  behalf,  but  no  judgment  shall  be  given 
against  him,  upon  any  liability  claimed  against  her  aris- 


694  MARRIAGE,  ETC.  [Chap.  42. 

iug  before  the  marriage  or  upon  any  contract  made  by 
her  alone  after  her  marriage. 

Rowland  v.  Perry,  64—578;  Viek  v.  Pope,  81—23;  Gulley  v.  JIacy,  81— 
356;  Nicholson  v.  Cox,  83 — 44:  Kicbolson  v.  Co.x,  63 — 48;  Holhngsworth 
V.  Harman,  83—153;  Roberts  v.  Liseubce,  86—136. 


Sec.  1835.  Husband  may  be  ordered  to  pay  co.sts  or  dis- 
charged from  defence.     1871-'2,  c.  193,  s.  IC. 

Whenever  any  husband  shall  be  allowed  to  defend  for 
his  wife,  he  may  be  ordered  to  pay  costs  for  any  miscon- 
duct, and  may  be  discharged  from  the  conduct  of  her  de- 
fence, if  it  shall  appear  to  the  court  that  his  defence  is  not 
bona  fide  in  her  interest. 


Sec.  1S26.  Wife  not  capable  of  contracting  without  the 
husband  unless  a  free-trader.    1871-'2,  c.  193,  s.  17. 

No  woman  during  her  coverture  shall  be  capable  of 
making  any  contract  to  affect  her  real  or  personal  estate, 
except  for  her  necessary  pereonal  expenses,  or  for  the 
support  of  the  family,  or  such  as  may  be  necessary  in  or- 
der to  pay  her  debts  existing  before  marriage,  without 
the  written  consent  of  her  husband,  unless  she  be  a  free 
trader,  as  hereinafter  allowed. 

Sutton  V.  Askew,  66 — 173;  Harris  v.  Jenkins,  72 — 183;  Baker  v.  Jordan, 
73—145;  Pippin  v.  Wesson,  74 — 437;  Rounlrce  v.  Gay,  74—447;  Atkinson 
V.  Ricbardson,  74 — 455;  Cooper  v.  Landis,  75—526;  Huiitly  v.  Whitner,  77 
— 393;  Kirkman  v.  Greensboro  Bunk,  77 — 394;  HoUiday  v.  McMillan,  79^ 
315;  Vick  V.  Pope,  81—23;  Hall  v.  Sliort,  81—273;  O'Connor  v.  Harris,  81 
—279;  Fisher  v.  Webb,  84—44;  Johnston  v.  Cochrane,  84 — 447;  Hardy  v. 
Holly,  84— 661;  George  v.  High,  85—99;  Roberts  v.  Lisenbee,  86—136; 
Smith  V.  Gooch,  86—276;  Mebane  v.  Lay  ton,  86—571;  Clayton  v.  Rose,  87 
—106. 


Sec.  1827.   Married  woman  may  become  a  free  trader, 
how;  written  form  of  free  traders.     1871-'2,  c.  193, 

ss.  18,  19. 

Every  married  woman  of  the  age  of  twenty-one  years 
or  upwards,  with  the  consent  of  her  husband,  may  be- 
come a  free  trader  in  the  manner  following: 

(1)  By  ante-nuptial  contract,  proved  and  registered,  as 
hereinafter  required;  or, 

(2)  She  and  her  husband  shall  sign  a  writing  in  the  fol- 
lowing or  some  equivalent  form: 


Chap.  42.]  MARRIAGE,  ETC.  695 

"A  B.,  of  the  aire  of  twenty-ono  years  or  upwards,  wife  of  C.  D.,  of . . . . 
couuty  with  his  cbnsenl.  testitiod  by  his  signature  hereto,  enters  herself  us 
a  free  trader  from  the  date  of  the  registration  hereof.  ^  ^ 

(Signed)  (.;  j^' 

Witness:  E.  F. 

Registered  this day  of ,  18 

The  said  writina;  may  be  pi'oved  by  the  subscribing  wit- 
ness or  acknowledged  by  the  parties  before  any  officer 
authorized  to  take  the  probate  of  deeds,  and  shall  be  hied 
and  registered  in  the  office  of  the  register  of  deeds  for  the 
county  in  which  the  woman  proposes  to  have  her  prmci- 
pal  or  only  place  of  busmess. 

Manning  v.  Manning,  79 — 300. 

Sec.  1828.  A  free  trader  from  date  of  registration.    1871- 
'3,  c.  193,  s.  20. 

From  the  time  of  the  registration  of  the  writing  n-ien- 
tioned  in  the  preceding  section,  the  married  woman 
therein  mentioned  shall  be  a  free  trader,  and  authorized 
to  contract  and  deal  as  if  she  were  a/e??ie  sole. 

Manning  v.  Manning,  79 — 300. 

Sec.  1829.  Copy  from  register's  books  evidence.   1871-'3, 
c.  193,  s.  21. 

A  copy  of  such  writing,  duly  proved  and  registered, 
and  certified  by  the  register  of  the  county  m  which  the 
same  is  registered,  shall  be  admissible  in  evidence  as 
certified  copies  of  registered  deeds  are,  or  may  be  allowed 
to  be. 

Manning  v.  Manning,  79—300. 

Sec.  1830.  How  she  may  cease  to  be  a  free  trader;  public 
notification  given,     187 1-'2,  c.  193,  s.  22. 

The  right  of  a  married  woman  to  act  as  a  free  trader 
may  be  ended  at  anv  time  by  an  entry  by  her,  or  by  her 
atttn-ney,  in  the  margin  of  the  registration  of  the  writing 
above  mentioned,  to  the  effect  that  from  the  date  of  such 
marginal  entrv,  she  ceases  so  to  act,  and  by  publication  to 
that  effect  we'ekly  for  three  weeks  in  some  newspaper 
published  in  the  county  in  which  she  had  her  principal  or 
only  place  of  business,  or  if  there  shall  be  none  so  pub- 
hshed,  then  in  any  other  convenient  newspaper.  But 
such  entry  and  publication  shall  not  impair  any  habihties 
incurred  previously  thereto,  nor  prevent  such  married 
woman  from  becoming  liable  afterwards  to  any  person 
whom  she  may  fraudulently  induce  to  deal  with  her  as  a 
free  trader. 


696  MARRIAGE,  ETC.  [Chap.  42. 

Sec.  1831.  Woman  living  separate  from  her  luisband  may 
be  a  lice  trader;  wives  of  idiots  or  lunatics  made  free 
traders.    1871-'2,  c.  193,  s.  23.    1880,  c.  35. 

Every  woman  who  shall  be  living  separate  from  her 
husband,  either  under  a  judgment  of  divorce  by  a  compe- 
tent court,  or  under  a  deed  of  separation,  executed  by 
said  husband  and  wife,  and  registered  in  the  county  iu 
which  she  resides,  or  whose  husband  shall  have  been  de- 
clared an  idiot  or  a  lunatic,  shall  be  deemed  and  held, 
from  the  docketing  of  such  judgment,  or  from  the  regis- 
tration of  such  deed,  or  from  the  date  of  such  idiocy  or 
lunacy  and  during  its  continuance,  a  free  trader,  and 
shall  have  power  to  convey  her  personal  estate  and  her 
real  estate  without  the  assent  of  her  husband. 

Rountree  v.  Gay,  74 — 447. 

Sec.  1833.  Wife  abandoned  by  her  husband,  &c.,  a  free 
trader,    1871-'2,  c.  193,  s.  24. 

Every  woman  whose  husband  shall  abandon  her,  or 
shall  maliciously  turn  her  out  of  doors,  shall  be  deemed 
a  free  trader,  so  far  as  to  be  competent  to  contract  and 
be  contracted  with,  and  to  bind  her  separate  property, 
but  the  hability  of  her  husband  for  her  reasonable  sup- 
port shall  not  thereby  be  impaired,  and  she  shall  have 
power  to  convey  her  personal  estate  and  her  real  estate 
without  the  assent  of  her  husband. 

Rountree  v.  Gay,  74—447. 

Sec.  1833.  Husband  liable  jointly  with  wife  for  torts,  &c., 
committed  by  wife.    1871-'2,  o.  193,  s.  25. 

Every  husband  Hving  with  his  wife  shall  be  jointly  lia- 
ble with  her  for  all  damages  accruing  from  any  tort 
committed  by  her  and  for  all  costs  and  fines  incurred  in 
any  criminal  proceeding  against  her. 
Roberts  v.  Lisenbce,  86—130. 

Sec.  1834.  What  leases,  &c.,  by  wife  valid,  and  what  not, 
without  private  examination.     1871-'2,  c.  193,  s.  26. 

No  lease  or  agreement  for  a  lease  or  sub-lease  or  as- 
signment by  any  married  woman,  not  a  free  trader,  of 
her  lands  or  tenements,  or  chattels  real,  to  run  for  more 
than  three  years,  or  to  begin  in  possession  more  than  six 
months  after  its  execution,  or  any  conveyance  of  any 
freehold  estate  in  her  real  property,  shall  be  valid,  unless 
the  same  be  executed  by  her  and  her  husband,  and 
proved  or  acknowledged  by  them,  and  her  free  consent 
thereto,  appear  on  her  examination  separate  from  her 


Chap.  42.]  MAERIAGE,  ETC.  697 

husband,  as  is  now  or  may  hereafter  be  required  by  law 
in  the  probate  of  deeds  of  femes  covert. 

Pippin  V.  Wesson,  74-437;    Towles  v.   Fisher,   77—437;    Manning  v. 
Mann  ng,  79—293;  Jeffries  v.  Green,  79—330. 

Sec.  1835.  What  contract  between  husband  and  wife  not 
to  be  valid,  unless  with  sanction  of  judge,  or  other 
officer.    1871-'3,  c.  193,  s.  27. 

No  contract  between  a  husband  and  wife  made  during 
coverture  shall  be  valid  to  affect  or  change  any  part  of 
the  real  estate  of  the  wife,  or  the  accruing  mcome 
thereof,  for  a  longer  time  than  three  years  next  ensuing 
the  making  of  such  contract,  or  to  impair  or  change  the 
body  or  capital  of  the  personal  estate  of  the  wife,  oi-  the 
accruing  income  thereof,  for  a  longer  time  than  three 
years  next  ensuing  the  making  of  such  contract,  unless 
such  contract  shall  be  in  writing,  and  be  duly  proved  as 
is  reauired  for  conveyances  of  laud;  and  upon  the  exam- 
ination of  the  wife  separate  and  apart  from  her  husband, 
as  is  now  or  may  hereafter  be  required  by  law  in  the 
probate  of  deeds  of  femes  covert,  it  shall  appear  to  the 
satisfaction  of  such  officer  that  the  wife  freely  ex- 
ecuted such  contract,  and  freely  consented  thereto  at  the 
time  of  her  separate  examination,  and  that  the  same  is 
not  unreasonable  or  injurious  to  her.  The  certificate  of 
the  officer  shall  state  his  conclusions,  and  shall  be  conclu- 
sive of  the  facts  therein  stated:  Provided,  that  the  same 
may  be  impeached  for  fraud  as  other  judgments  may  be. 

Banks  V.  Green,  78—247;  Hollingsworth  v.  Harman,  83—153;  George  v. 
•Q\„\x,  85—99;  Warliclc  v.  Wliite,  86—139. 

Sec.  1836.  What  contracts  between   husband    and    wife 
valid.     187 1-'2,  c.  193,  s.  28. 

Contracts  between  husband  and  wife  not  forbidden  by 
the  preceding  section  and  not  inconsistent  with  public 
policy  are  valid,  and  any  pei'sons  of  full  age  about  to  be 
mariied,  and  snbject  to  the  preceding  section,  any  mar- 
ried persons  may  release  and  quit  claim  dower,  tenancy 
by  the  courtesy,  and  all  other  rights  which  they  might 
respectivelv  acquire  or  may  have  acquired  by  marriage 
in  the  prop'erty  of  each  other;  and  such  releases  may  be 
pleaded  in  bar  of  any  action  or  proceeding  for  the  recov- 
ery of  the  rights  and  estates  so  released. 

Hollingswortli  v.  Harman.  83—153;  George  v.  Iligb.  85—99. 

Sec.  1837.    Savings  from  separate  estate  of  wife,  her  sep- 
arate property.     lS71-'2,  c.  193,  s.  29. 

The  savings  from  the  income  of  the  separate  estate  of 

30 


698  MAERIAGE,  ETC.  [Ch.\p.  42 

the  wife,  are  her  separate  property.  But  no  husband 
who,  during  the  coverture  (the  wife  not  being  a  free 
trader  under  this  chapter),  has  received,  without  objec- 
tion from  his  wife,  the  income  of  her  separate  estate, 
shall  be  liable  to  account  for  such  receipt,  for  any  greater 
time  than  the  year  next  preceding  the  date  of  a  sum- 
mons issued  against  him  in  an  action  for  such  income,  or 
next  preceding  her  death. 

Baker  v.  Jordan,  73—145;  State  v.  Matthews,  76 — 41;  State  v.  Wincroft, 
76--38;  Manning  V.  Manning,  79—300;  Sliinn  v.  Smith,  79—310;  HoUiday 
V.  McMillan,  79—315;  Cecil  v.  Smith,  81—285;  George  v.  High,  85—90. 


Sec.  1838.  Husband  tenant  by  the  courtesy,  when.  1871- 
'2,  c.  193,  s.  30. 

Every  man  who  hath  married,  or  shall  marry  a  woman, 
and  by  her  have  issue  born  alive,  shall  after  her  death, 
he  surviving,  be  entitled  to  an  estate  as  tenant  by  the 
courtesy  during  his  life,  in  all  the  lands,  tenements  and 
hereditaments,  whereof  his  said  wife  was  beneficially 
seized  in  deed  during  the  coverture,  wherein  the  said 
issue  was  capable  of  inheriting,  whether  the  said  seizin 
was  of  a  legal  or  of  an  equitable  estate;  except  that 
when  the  wife  shall  have  obtained  a  divorce  a  mensa  et 
thoro,  and  shall  not  be  living  with  her  husband  at  her 
death,  or  when  the  husband  shall  have  abandoned  his 
wife,  or  shall  have  maliciously  turned  her  out  of  doors, 
and  they  shall  not  be  living  together  at  her  death;  or  if 
the  husband  shall  have  separated  himself  from  his  wife, 
and  be  living  in  adultery  at  her  death,  he  shall  not  be 
tenant  by  the  courtesy  of  her  lands,  tenements  and  here- 
ditaments. 

Long  V.  Graeber,  64 — 431 ;  Teague  v.  Downs,  69—280;  Hunt  v.  Salter- 
white,  85—73. 


Sec.   1839.    Power  of  married  woman  to  make  a  will. 
1871-'2,  c.  193,  s.  31. 

Every  married  woman  shall  have  power  to  devise  and 
bequeath  her  real  and  personal  estate  as  if  she  were  a 
feme  sole;  and  her  will  shall  be  proved  as  is  required  of 
other  wills:  Provided,  that  no  will  made  by  any  married 
woman  shall  be  held  to  deprive  her  husband,  surviving, 
of  his  estate  in  her  real  property,  as  tenant  by  the  cour- 
tesy, as  defined  in  the  preceding  section,  except  in  the 
cases  therein  excepted. 


Chap.  42.]  MARRIAGE,  ETC.  699 

Sec.  1840.  Real  estate  of  wife  not  to  be  sold  or  leased 
without  her  consent;  husband's  interest  exempt  from 
execution.    K.  C,  c.  56,  s.  1.    1848,  c.  41. 

No  real  estate  belonging  at  the  time  of  marriage  to 
females,  married  since  the  third  Monday  of  November, 
one  thousand  eight  hundred  and  forty-eight,  nor  any 
real  estate  by  them  subsequently  acquired,  nor  any  real 
estate  acquired  on  and  since  the  first  day  of  March,  one 
thousand  eight  hundred  and  forty-nine,  by  femes  covert, 
who  were  such  on  the  said  third  Monday  of  November, 
one  thousand  eight  hundred  and  forty-eight,  shall  be  sub- 
ject to  be  sold  or  leased  by  the  husband  for  the  term  of  his 
own  life  or  any  less  term  of  years,  except  by  and  with 
the  consent  of  his  wife,  first  had  and  obtained,  to  be  ascer- 
tained and  effectuated  by  deed  and  privy  examination, 
according  to  the  rules  required  by  law  for  the  sale  of 
lands  belonging  to  femes  covert.  And  no  interest  of  the 
husband  whatever  in  such  real  estate  shall  be  subject  to 
sale  to  satisfy  any  execution  obtained  against  him;  and 
every  such  sale  is  hereby  declared  null  and  void. 

Adams  v.  Gillespie,  3  Jon.  Eq..  244;  Hamlet  v.  Taylor,  5  Jon.,  36; 
Houston  V.  Brown,  7  Jon.,  161;  Long  v.  Graeber,  G4 — 431;  Rowland  v. 
Perry,  64—578;  Teague  v.  Downs,  69—280;  Wilson  v.  Arentz,  70—670; 
Lyon  V.  Akin,  78—258;  Manning  v.  Manning,  79—293;  Cecil  v.  Smith, 
81—285:  Young  v.  Greenlee,  83—346. 

Sec.  1841.  Wife  may  insure  her  husband's  life  for  her 
separate  use.    R.  C,  e.  56,  s.  2.     1850,  c.  90. 

Any  feme  covert,  in  her  own  name  or  in  the  name  of  a 
trustee  with  his  assent,  may  cause  to  be  insured  for  any 
definite  time  the  life  of  her  husband,  for  her  sole  and 
separate  use,  and  she  may  dispose  of  the  intei'est  in  the 
same  by  will,  notwithstanding  her  coverture. 

Conigland  v.  Smith,  79—303;  Burton  v.  Farinholt,  86—260. 

Sec.  1842.  Persons  formerly  slaves,  when  deemed  to  have 
Jjeen  mai-ried.    1866,  c.  40,  s.  5. 

Persons,  both  or  one  of  whom  were  formerly  slaves, 
who  have  complied  with  the  provisions  of  section  five, 
chapter  forty,  of  the  act  of  the  general  assembly,  rati- 
fied March  tenth,  one  thousand  eight  hundred  and  sixty- 
six,  shall  be  deemed  to  have  been  lawfully  married. 

State  V.  Samuel,  2  D.  &  B.,  177;  Cooke  v.  Cooke,  Phil.,  583;  State  r. 
Harris,  63—1;  State  v.  Adams,  65—537;  State  v.  Whitford,  8&— 036;  Long 
V.  Barnes,  87—329. 


700  MAERIAGE,  ETC.  [Chap.  42. 

Sec.   1843.  Consequences  of  a  divorce  a  vinculo  on  the 
property  of  the  parties.    1871-'3,  c.  193,  s.  43. 

When  a  marriage  shall  be  dissolved  a  vinculo,  the  par- 
ties respectively,  shall  thereby  lose  all  his  or  her  right 
to  an  estate  by  the  courtesy,  or  dower,  and  all  right  to 
any  year's  provisions  or  distributive  share  in  the  per- 
sonal property  of  the  other,  and  all  right  to  administer 
on  the  estate  of  the  other,  and  every  right  and  estate  in 
the  real  or  personal  estate  of  the  other  party,  v^^hich  by 
settlement  before  or  after  marriage,  was  settled  upon 
such  party  in  consideration  of  the  marriage  only. 

Sec.  1844.  Consequences  of  an  elopement  with  an  adul- 
terer.   187 1-'3,  c.  193,  s.  44. 

If  any  married  woman  shall  elope  with  an  adulterer, 
and  shall  not  be  living  with  her  husband  at  his  death,  she 
shall  thereby  lose  all  right  to  dower  in  the  lands  and  ten- 
ements of  her  husband,  and  also  all  right  to  a  year's  pro- 
vision, and  to  a  distributive  share  from  the  personal  prop- 
erty of  her  husband,  and  all  right  to  administration  on 
his  estate,  and  also  all  right  and  estate  in  the  property  of 
her  husband,  settled  upon  her  upon  the  sole  considera- 
tion of  the  marriage,  before  or  after  marriage;  and  such 
elopement  may  be  pleaded  in  bar  of  any  action,  or  pro- 
ceeding, for  the  recovei-y  of  such  rights  and  estates. 

Cook  V.  Sexton,  79—305 ;  Warlick  v.  White,  86—139. 

Sec.  1845.  Consequences  of  a  husband  separating  from 
his  wife  and  living  in  adultery.    1871-'3,  c.  193,  s.  45. 

If  any  husband  shall  separate  himself  from  his  wife 
and  live  in  adulteiy  he  shall  lose  aU  right  and  estate  of 
whatever  character,  in  and  to  her  personal  property,  as 
administrator,  or  otherwise;  and  also  any  right  and  es- 
tate in  the  property  of  his  wife,  which  may  have  been 
settled  upon  him  solely  in  consideration  of  the  marriage, 
by  any  settlement  before  or  after  marriage;  and  such 
separation,  and  living  in  adultery,  may  be  pleaded  in  bar 
of  any  action  or  proceeding  for  the  recovery  of  such  right 
or  estates. 


Chap.  43.] 


MILLS. 


701 


CHAPTER  FORTY-THREE. 


MILLS. 


Section. 

1846.  What  sball  be  public  mills. 

1847.  Millers  to   grind  according  to 
turn. 

1848.  Measures  to  be  kept. 

1849.  How  persons -wishing  to  build 
a  water-mill  to  proceed. 

1850.  Court  to  appoint  three  com- 
missioners. 

1851.  The    third    commissioner    to 
notify  meeting  and  preside. 

1853.  Duty  of  commissioners. 

1853.  What  their  report  to  contiiin. 

1854.  When  mill  shall  not  be  allow- 
ed. 

1855.  Power  of  court,  on  return  of 
report. 

1856.  Duty    of  persons     to  whom 
leave  is  granted. 


Section. 

1857.  Time  to  build  or  repair  water- 
mill. 

1858.  Injury  done  by  the  erection  of 
mills. 

1859.  Dams,  when  abated  as  nuisan- 
ces. 

1860.  When  judgment  for  plaintiff 
of  an  annual  sum  for  damages, 
said  sum  binding  for  five 
years. 

1861.  When  yearly  damages  as  high 
as  twenty  dollars. 

1863.  When  judgment  against  plain- 
tiff; when  not. 
1863.  Pay  of  commissioners. 


Sec.  1846.  "Wliat  shall  be  public  mills.    R.  C,  c.   71,  s.  1. 
1777,0.  132,  s.  1. 

Every  water  grist-mill,  steam  mill,  or  wind  mill,  that 
shall  grind  for  toll,  shall  be  a  public  mill. 

Eason  v.  Perkins,  3  Dev.  Eq.,  88;  Benbow  v.  Bobbins,  71—338;  Ilyatt 
V.  Myers, 73— 232;    State  v.  Jaynes,  78—504. 

Sec.  1847.  Millers  to  grind  according  to  turn.     K.  C,  c. 
71,  s.  6.     1777,  c.  132,  s.  10.     1793,  c.  402. 

All  millers  of  public  mills  shall  grind  according  to  turn, 
and  shall  well  and  sufficiently  grind  the  grain  brought  to 
their  mills,  if  the  water  will  permit,  and  shall  take  no 
more  toll  for  grinding  than  one-eightli  part  of  the  Indian 
corn  and  wheat,  and  one-fourteenth  part  for  chopping 
grain  of  any  kind;  and  every  mUler  and  keeper  of  a  mill 
making  default  therein  shall,  for  each  offence,  forfeit 
and  pay  five  dollars  to  the  party  injured:  Provided,  that 
the  owner  may  grind  his  own  grain  at  any  time. 

Hyatt  V.  Myers,  73—232. 


702  MILLS.  [Chap.  43. 

Sec.  1848.  Measures  to  be  kept.    K.  C,  c.  71,  s.  7.    1777, 
c.  122,  s.  11. 

All  millers  shall  keep  in  their  mills  the  following  meas- 
ures, namely,  a  half  bushel  and  peck  of  full  measure, 
and  also  proper  toll-dishes  for  each  measure;  and  every 
owner,  by  himself  or  servant,  keeping  any  mill,  who 
shall  keep  any  false  toll- dishes,  contrary  to  the  true  in- 
tent and  meaning  of  this  chapter,  shall  be  guilty  of  a 
misdemeanor. 

State  V.  Perry,  5  Jon. ,  252 ;  State  v.  Nixon,  5  Jon. ,  257 ;  Hyatt  v.  Myers,  73 
—233. 

Sec.  1849.  How  persons  wishing  to  build  a  water-mill  to 
proceed.    1868-'9,  c.  158,  s.  1. 

Any  person  wishing  to  build  a  water-mill,  who  hath 
land  on  only  one  side  of  a  stream,  shall  issue  a  summons 
returnable  to  the  superior  court  of  tlie  county  in  which 
the  land  sought  to  be  condemned,  or  some  part  of  it, 
lies,  against  the  persons  in  possession  and  the  owners  of 
the  land  on  the  opposite  side  of  the  stream,  and  against 
such  others  as  have  an  interest  in  the  controversy;  and 
the  procedure  shall  be  as  is  provided  in  other  special  pro- 
ceedmgs,  except  so  far  as  the  same  may  be  moditied  by 
this  cliapter. 

Sumner  v.  Miller,  04—688;  Benbow  v.  Bobbins,  71—338;  Burnett  v. 
Nicholson,  72—334;  Burnett  v.  Nicholson,  86—99. 

Sec.  1850.  Court  to  appoint  three  commissioners.    1868- 
'9,  c.  158,  s.  2. 

If  no  just  cause  should  be  shown  against  the  building 
of  such  mill,  the  court  shall  appoint  three  freeholders, 
one  of  whom  shall  be  chosen  by  the  plaintiff,  another  by 
the  defendants,  and  the  third  by  the  court,  or  if  the 
plaintiff  or  defendants  shall  refuse  or  fail,  or  unreason- 
ably delay  to  name  a  commissioner,  the  court  shall  uanie 
one  in  lieu  of  such  delinquent  party;  these  commis- 
sioners may  be  changed  from  time  to  time  by  permis- 
sion of  the  court  for  just  cause  shown. 

Sec.  1851.  The  third  commissioner  to  notify  meeting  and 
preside.    1868-'9,  c.  158,  s.  3. 

The  third  commissioner  shall  cause  the  otliers  to  be 
notified  of  tlie  time  and  place  of  meeting,  and  shall  pre- 
side at  their  meetings;  they  may,  if  necessary,  summon 
and  examine  witnesses,  who  shall  be  sworn  by  the  pre- 
siding cojnmissioner;  any  commissioner  named  by  or  for 
either  of  the  parties,  who,  without  just  cause,  shall  fail 


Chap.  43.]  MILLS.  703 

to  attend  any  meeting  notified  by  the  president,  shall 
forfeit  and  pay  to  the  opposite  party  fifty  dollars;  and  if 
the  president  shall,  in  like  manner,  unreasonably  delay 
to  notify  of  a  meeting,  or  fail  to  attend  one  that  is 
appointed,  he  shall  foifeit  and  pay  to  the  plaintiff  fifty 
dollars,  and  to  the  defendant  a  like  sum. 

Sec.  1853.  Duty  of  commissioners.    1868-'9,  c.  158,  s.  4. 

The  commissioners  shall  be  sworn  by  some  officer 
qualified  to  administer  an  oath,  to  act  impartially 
between  the  parties,  and  to  perform  the  duties  hex-ein 
imposed  on  them  honestly  and  to  the  best  of  their  ability. 
They  shall  view  the  premises  where  the  mill  is  proposed  to 
be  built,  and  shall  lay  off  and  value  a  portion  of  the  land  of 
the  plaintiff,  not  to  exceed  one  acre  in  area,  and  an  equal 
area  of  the  land  of  the  defendants  opposite  thereto,  and 
report  their  proceedings  to  the  court  within  a  reasonable 
time,  not  exceeding  sixty  days. 

Burnett  v.  Nicholson,  86—99. 

Sec.  1853.  What  their  report  to  contain.    1868-'9,  c.  158, 
s.  5. 

The  report  of  the  commissioners  shall  set  forth: 

(1)  The  location,  quantities  and  value  of  the  several 
areas  laid  off  by  them; 

(2)  Whether  either  of  them  includes  houses,  garden, 
orchards  or  other  immediate  conveniences; 

(3)  Whether  the  proposed  mill  will  overflow  another 
mill  or  create  a  nuisance  in  the  neighborhood; 

(4)  Any  other  matter  upon  which  they  shall  have  been 
directed  by  the  court  to  report,  or  which  they  may  think 
necessary  to  the  doing  of  full  justice  between  the  parties. 

Austin  V.  Helms,  65—560;  Burnett  v.  Nicholson,  72—334. 

Sec.  1854.  "When  mill  shall  not  be  allowed.    1868-'9,  c. 
158,  s.  6. 

If  the  area  laid  off  on  the  land  of  either  party  take 
away  houses,  gardens,  orchards,  or  other  immediate  con- 
veniences; or  if  the  mill  proposed  will  overflow  another 
mill,  or  will  create  a  nuisance  in  the  neighborhood,  the 
court  shall  not  allow  the  proposed  mill  to  be  built. 

Burgess  v.  Clark,  13  Ired..  109. 

Sec.  1855.  Power  of  court  on  return  of  report.     1868-'9, 
c.  158,  s.  7. 

If  the  report  be  in  favor  of  building  the  proposed  indl, 
and  is  confirmed,  then  the  court  may,  in  its  discretion, 


704  MILLS.  [Chap.  43. 

allow  either  the  plaintiff  or  defendant  to  erect  such  mill 
at  the  place  proposed,  and  shall  order  the  costs,  and  the 
\'alue  of  the  opposite  area,  to  be  paid  by  the  party  to 
whom  such  leave  shall  be  granted;  and  upon  such  pay- 
ment, the  party  to  whom  such  leave  shall  be  granted 
shall  be  vested  with  title  in  fee  to  the  opposite  area. 
Such  payment  may  be  made  into  court  for  the  use  of  the 
parties  entitled  thereto. 

Sec.  1856.  Duty   of  persons  to  whom   leave  is  g^rauted. 
1868-'9,  c.  158,  s.  8. 

The  person  to  whom  leave  shall  be  granted  shall, 
within  one  year,  begin  to  build  such  water-mill,  and  shall 
finish  the  same  within  three  years;  and  thereafter  keep 
it  up  for  the  use  and  ease  of  such  as  shall  be  customers 
to  it:  otherwise,  the  said  land  shall  return  to  the  person 
from  whom  it  was  taken,  or  to  such  other  person  as  shall 
have  his  right,  unless  the  time  for  finishing  the  mUl,  for 
reasons  approved  by  the  court,  be  enlarged. 

Sec.  1857.  Time  to  build  or  repair  water-mill.    1868-'9, 
c.  158,  s.  9. 

If  any  water-mill  belonging  to  any  person,  not  being 
of  age,  a  married  woman,  or  of  unsound  mind,  or  im- 
prisoned, falls,  burns,  or  is  otherwise  destroyed,  such 
person  and  his  heirs  shall  have  three  years  to  rebuild  and 
repair  the  same,  and  any  person  under  any  disability 
aforesaid,  shall  have  three  years  from  the  removal  of  the 
disability. 

Sec.  1858.  Injury  done  by  the  erection  of  mills.    1876 
'7,  c.  197,  s.  1. 

Any  person  conceiving  himself  injured  by  the  erection 
of  any  grist-mill,  or  mill  for  other  useful  purposes,  may 
issue  his  summons  returnable  before  the  judge  of  the 
superior  court  of  the  county  where  the  endamaged  land, 
or  any  part  thereof  hes,  against  the  persons  authorized 
to  be  made  parties  defendant.  In  his  complaint  he  shall 
set  forth  in  what  respect  and  to  what  extent  he  is  in- 
jured, together  with  such  other  matters  as  may  be  neces- 
sary to  entitle  him  to  the  relief  demanded.  The  court 
shall  then  proceed  to  hear  and  determine  all  the  ques- 
tions of  law  and  issues  of  fact  arising  on  the  pleadings  as 
in  other  civil  actions. 

Fellow  V.  Fulgbam,  3  Mur.,  254;  Wilson  v.  Myers,  4  Hawks,  73;  Purcell 
V.  MrCallum,  1  D.  &  B..  222;  Gilbert  v.  Jones,  1  D.  &  B.,  3o9;  Bridgers  v. 
Pureell,  1  V,  &B.,  492;  Pugli  v.  Wlieeler,  2  D.  &  B.,  50;  Bridgers  v.  Puicell, 


\ 


Chap.  43.]  MILLS.  705 

1  Ircd.,  233:  Waddy  v.  Johnson,  5  Ired.,  333;  Cochran  v.  Wood,  6  Ired., 
194;  Howcott  V.  Warren,  7  Ired.,  20;  Fowcott  v.  Coffield,  7  Ired.,  24;  Pace 
V.  Freeman,  10  Ircd.,  103;  Bcatty  v.  Connor,  13  Ircd.,  341;  Kimel  v. 
Kimel,  4  Jon.,  131;  Wright  v.  Stowc,  4  Jon.,  516;  Shaw  v.  Ethcridge,  7 
Jon.,  235;  Griffin  v.  Foster,  8  Jon.,  337:  Little  v  Stanbacli,  03—385;  Powell 
V.  Lash,  64—456;  Sumner  v.  Miller,  64—688;  Austin  v.  Helms,  65—560; 
Jenkins  v.  Conley,  70 — 353;  Benbow  v.  Robbins,  71 — 338;  Henly  v.  Wilson, 
77—316:  Hester  v.  Broach,  84—251;  Daughtry  v.  Warren,  85—136;  Bur- 
nett V.  Nicholson,  86—99. 

Sec.  1859.  Dams,  when  abated  as  nuisances.  1876-'7, 
c.  197,  s.  3. 

When  damages  shall  be  recovered  in  final  judgment  in 
such  civil  actions  and  execution  shall  issue  and  be  re- 
turned unsatisfied,  and  the  plaintiff  is  not  able  to  collect 
the  same  either  from  the  insolvency  of  the  defendant  or 
by  reason  of  the  exemptions  allowed  to  defendant,  the 
judge  shall,  on  the  facts  being  made  to  appear  before  him 
by  affidavit  or  other  evidence,  order  that  the  dam,  or 
portion  of  the  dam,  or  other  cause  creating  the  injury, 
shall  be  abated  as  a  nuisance,  and  he  shall  have  power  to 
make  aU  necessary  orders  to  effect  this  purpose. 

Jones  V.  Clarke,  7  Jon.,  418;  Daughtry  v.  Warren,  85 — 136. 

Sec.  18G0.  Wlien  judgment  for  plaintiff  of  an  annual  sum 
for  damages,  said  sum  binding  for  live  years.  1868- 
'9,  c.  158,  s.  12. 

A  judgment  giving  to  the  plaintiff  an  annual  sum  by 
way  of  damages,  shall  be  binding  between  the  parties  for 
five  years  from  the  issuing  of  the  summons,  if  the  mill  is 
kept  up  during  that  time,  unless  the  damages  shall  be 
increased  by  raising  the  water  or  otherwise. 

Gillet  V.  Jones,  1  D.  &  B.,  339;  Pugh  v.  Wheeler,  2  D.  &  B.,  50; 
Bridgersv.  Purcell.  1  Ired.,  233;  Cochran  v.  Wood,  6  Ired.,  194;  Burnett 
V.Nicholson,  72 — 334;  Hester  v.  Broach,  84 — 251;  Burnett  v.  Nicholson, 
86—99. 

Sec.  1861.  When  yearly  damages  as  high  as  twenty  dol- 
lars.    1868-'9,  c.  158,  s.  14. 

In  all  cases  where  the  final  judgment  of  the  court  shall 
assess  the  yearly  damage  of  the  plaintiff  as  high  as  twenty 
dollars,  nothing  in  this  chapter  contained  shall  be  con- 
strued to  prevent  the  plaintiff,  his  heirs  or  assigns,  from 
suing  as  heretofore,  and  in  such  case,  the  final  judgment 
aforesaid  shall  be  binding  only  for  the  year's  damage  pre- 
ceding the  issuing  of  the  summons. 

Gilliam  v.  Cannady,  11  Ired.,  106;  Hester  v.  Broach,  84 — 251;  Burnett 
V.  Nicholson,  86—99. 


706       MONEY  IN  HANDS  OF  CLERKS.     [Chap.  44. 

Sec.  1862.  When  jiidgmeut  against  plaintiff,  when  not. 
1868-'9,  c.  168,  s.  15. 

If  the  final  judgment  of  the  court  shall  be  that  the 
plaintiff  hath  sustained  no  damage,  he  shall  pay  the 
costs  of  his  proceeding;  but  if  the  final  judgment  shall  be 
in  favor  of  the  plaintiff,  he  shall  have  execution  against 
the  defendant  for  one  year's  damage,  preceding  the  issu- 
ing of  the  summons,  and  for  all  costs:  Provided,  that  if 
the  damage  adjudged  do  not  amount  to  five  dollars,  the 
plaintiff  shall  recover  no  more  costs  than  damages.  And 
if  the  defendant  do  not  annually  pay  the  plaintiff,  his 
heirs  or  assigns,  before  it  falls  due,  the  sum  adjudged  as 
the  damages  for  that  year,  the  plaintiff  may  sue  out  exe- 
cution for  the  amount  of  the  last  year's  damage,  or  any 
part  thereof  which  may  remain  unpaid. 

KiniL'l  V.  Kimel,  4  Jon.,  121;  Wright  v.  Stowe,  4  Jon.,  51C;  Hester  v. 
Broacli,  84—251, 


Sec.  1863.  Pay   of  commissioners.    1868-'9,   c.    158,    s. 
16. 

Each  commissioner  appointed  under  this  chapter  shall 
be  entitled  to  two  dollars  per  day  to  be  paid  and  taxed  as 
the  other  costs  provided  in  this  chapter. 


CHAPTER  FORTY- FOUR. 

MONEY  REMAINING  IN  HANDS  OF   OLEEKS  AND 
OTHERS. 


Section. 

1864.  Clerks,  &c.,  of  all  courts  to 
maki'  statement  of  moneys  re- 
maining in  hand  three  years, 
unless  detained  by  order  of 
court,  and  publish  the  same 
at  court-house  door;  to  whom 
statement  sent. 

1865.  Moneys  to  be   paid  to  certain 


Section. 

counts,  Ac,  to  be  sued;  pen- 
alty $100;  where  suit  brought. 

1867.  Clerks,  &c.,  admitting  money 
in  hand,  and  failing  to  pay, 
how  proceeded  against. 

1868.  Sheriff  to  account  for  such 
moneys  in  like  manner  as 
clerks. 


public  officers.  1869.   Moneys   may   be  used   by  the 

1866.  Clerks    failing    to    render  ac- ]  public  till  called  for  by  owners. 


Chap.  44.]    MONEY  IN  HANDS  OF  CLEEKS.        707 

Sec.  1864.  Clerks,  &c.,  of  all  courts  to  make  statement  of 
moneys  remaining  in  hand  three  years,  unless  detained 
by  order  of  court,  and  publish  the  same  at  court-house 
door;  to  whom  statement  sent.  R.  C,  c.  73,  s.  1. 
1823,  c.  1186,  s.  1.  1831,  c.  3,  ss.  1,  3. 
Every  clerk  of  the  superior  court,  inferior  court,  crim- 
inal court  and  clerk  of  the  supreme  court,  at  the  first 
session  of  the  court  of  which  he  is  clerk,  which  shall  be 
after  the  first  day  of  August  in  every  year,  shall  produce 
to  said  court  a  statement,  on  oath,  of  all  moneys  remain- 
ing iu  his  hands,  which  may  have  been  paid  into  his  of- 
fice three  years  or  more  previous  thereto,  and  shall  have 
come  into  his  hands  either  directly  from  parties,  or  from 
his  predecessor  in  office,  and  is  not  detained  in  his  custody 
by  special  order  of  the  court,  specifying  therein  the 
amount  of  each  claim,  and  the  name  of  the  person  to 
whom  the  same  is  payable,  a  copy  of  which  statement 
he  shall  forthwith  post  up  in  his  office,  and  at  the  court- 
house door;  and  if  there  be  no  such  moneys  in  his  hands, 
he  shall  make  affidavit  of  the  same,  which  statement  or 
affidavit,  if  made  by  a  clerk  of  the  supreme  court,  the 
court  shall  cause  to  be  transmitted  to  the  state  treasurer 
and  auditor;  if  made  by  a  clerk  of  the  superior,  inferior 
or  criminal  court,  the  judge  or  presiding  justice  of  the 
court  before  whom  it  is  made  shall  cause  the  same  to  be 
transmitted  to  the  officer  appointed  to  receive  and  dis- 
burse the  county  funds  on  or  before  the  first  day  of  Janu- 
ary in  the  next  year. 

Summey  v.  Johnston,  Winst.,  98. 

Sec.  1865.  Moneys  to  be  paid  to  certain  public  officers. 
R.  C,  c.  73,  s.  3.  1823,  c.  1186,  s.  2.  1831,  c.  3,  ss. 
1,3. 

The  said  officers  shall,  on  or  before  the  first  day  of 
January  in  every  year  after  the  foi'egoing  statements  are 
made,  account  with  and  pay  to  the  persons  entitled  to 
receive  the  same,  all  such  balances  reported  as  aforesaid 
to  be  in  their  hands;  that  is,  the  clei'k  of  the  supreme 
court  shall  pay  to  the  state  treasurer,  and  the  other  clerks 
shall  pay  to  the  receivei-s  of  the  county  funds  of  their 
respective  counties. 

Sec.  1866.  Clerks  failing  to  render  account,  &c.,  to  be 
sued;  penalty  $100;  where  suit  brought.  R.  C,  c.  73, 
s.  3.     1823,  c.  1186,  s.  3.     1831,  c.  3,  s.  2. 

If  any  clerk  shall  fail  to  comply  with  the  duties  herein 
enjoined,  he  shall  be  liable  to  be  sued  for  the  moneys  in 


m       MONEY  IN  HANDS  OF  CLERKS.     [Chap.  U. 

his  hands,  and,  moreover,  shall  forfeit  and  pay  for  every 
offence  one  hundred  dollars,  to  be  recovered  in  the  name 
of  the  state  and  for  the  use  of  the  county,  by  the  receiver 
of  the  county  funds;  except  that  in  the  case  of  the  de- 
fault of  the  clerk  of  the  supreme^  court,  suit  shall  be 
brought  by  the  state  treasurer  in  the  superior  court  of 
Wake  county,  and  the  recovery  shall  go  to  the  state 
treasury. 

Sec.  1867.  Clerks,  &c.,  admitting'  money  in  hand,  and 
failing  to  pay,  how  proceeded  against.  K.  C,  c.  73,  s. 
4.     1823,  c.  1186,  s.  4.    1831,  c.  3,  s.  2. 

If  any  of  the  said  officers  shall  fail  to  pay  any  such 
money,  by  him  admitted  to  be  due,  on  or  before  the  first 
day  of  January  in  every  year  as  aforesaid,  such  officer 
shall  be  proceeded  against  by  the  state  treasurer  in  any 
com't  of  record  in  the  state;  or  by  the  proper  county  offi- 
cer', in  the  courts  of  his  own  county,  in  the  like  manner 
as  against  defaulting  revenue  officers. 

Sec.  1868.  Sheriff  to  account  for  such  moneys  in  like  man- 
ner as  clerks.  K.  C,  c.  73,  s.  5.  1823,  c.  1186,  s.  6. 
1831,  c.  3,  ss.  1,  2. 

Every  sheriff,  at  the  same  time  and  in  like  manner  as 
is  required  of  clerks,  shall  render  and  publish  an  account 
of  moneys  vs^hich  may  have  been  in  his  hands  for  the 
period  of  one  year,  and  account  for  and  pay  the  same  to 
the  receiver  of  county  funds,  under  the  same  penalties 
for  default,  and  recoverable  in  like  manner,  as  are  pro- 
vided in  respect  of  said  clerks. 

Sec.  1869.  Moneys  may  be  used  by  the  public  until  called 
for  by  owners.    K.  C,  c.  73,  s.  6.    1828,  c.  41,  s.  1. 

The  money  aforesaid,  while  held  by  the  clerks  and 
sheriffs,  shall  be  paid  on  application,  to  the  persons  enti- 
tled thereto;  and  after  it  shall  cease  to  be  so  held,  it  may 
be  used  as  other  revenue,  subject,  however,  to  the  claim 
of  the  rightful  owner. 


Chap.  45.] 


OFFICES. 


709 


CHAPTER  FORTY-FIVE, 


OFFICES. 


Section. 

1870.  No  person  to  hold  office  con- 
trary to  the  constitution. 

1871.  Contracts  for  tlie  purchase  or 
sale  of  an  office,  void. 

1873.  Persons  liolding   office  to  be 
deemed  as  doing  so  lawfully, 


Section. 

and  shall  hold  until  their  suc- 
cessors have  qualified. 

1873.  All  officers  to  take  the  oaths 
before  acting;  penalty  five 
hundred  dollars  and  ejection 
from  office. 


Sec.  1870.  No  person  to  hold  office  contrary  to  the  con- 
stitution. K.  C,  c.  77,  s.  1.  K.  S.,  c.  80,  .s.  1.  1790, 
c.  319.  1792,  c.  366.  1793,  c.  393.  1796,  c.  4=50. 
1811,  c.  811. 

If  any  person  shall  presume  to  hold  any  office,  or  place 
of  trust  or  profit,  or  be  elected  to  a  seat  in  either  house 
of  the  general  assembly,  contrary  to  the  seventh  section 
of  the  fourteenth  article  of  the  constitution  of  the  state, 
he  shall  forfeit  and  pay  two  hundred  dollars  to  any  per- 
son who  will  sue  for  the  same. 

Worthy  v.  Barrett,  63—199. 

Sec.  1871.  Contracts  for  the  purchase  or  sale  of  office 
void.    K.  C.,c.  77,  s.  2.    5  and  6  Edw.  VI.,  c.  16,  s.  3. 

All  bargains,  bonds,  and  assurances,  made  or  given  for 
the  purchase  or  sale  of  any  office  whatsoever,  the  sale 
of  which  is  contrary  to  law,  shall  be  void. 

Sec.  1872.  Persons  holding  office  to  be  deemed  as  doing 
so  lawfully,  and  shall  hold  until  their  successors  have 
qualified.  B.  C,  c.  77,  s.  3.  1844,  c.  38,  s.  2.  1848, 
c.  64,  s.  1.    Const.,  Art.  IV,  s.  25. 

Any  person  who  shall,  by  the  proper  authority,  be  ad- 
mitted and  sworn  into  any  office,  shall  be  held,  deemed, 
and  taken,  by  force  of  such  admission,  to  be  rightfully 
in  such  office,  until,  by  judicial  sentence,  upon  a  proper 
proceeding,  he  shall  be  ousted  therefrom,  or  his  admission 
thereto  be,  in  due  course  of  law,  declared  void;  and  all 
officers  shall  continue  in  their  respective  offices,  tmtil 
their  successors  shall  have  been  elected  or  appointed, 
and  shall  have  been  duly  qualified. 

Threadgill  v.  R.  R.  Co.,  73—178;  State  v.  Long,  70-354;  Worley  v. 
Smith,  81—304;  King  v.  McLure,  84—153. 


no 


OFFICIAL  BONDS. 


[Chap.  46. 


Sec.  1873.  All  officers  to  take  the  oath  before  actiiig; 
penalty  $500,  and  ejection  from  office.  R.  C,  c.  77,' 
s.  4. 

Every  officer  and  other  person  who  may  be  required  to 
take  an  oath  of  office,  or  an  oath  for  the  faithful  dis- 
charge of  any  duty  imposed  on  him,  and  also  for  the 
oath  appointed  for  such  as  hold  any  office  of  trust  or 
profit  in  the  state,  shall  take  all  said  oaths,  before  enter- 
ing on  the  duties  of  the  office,  or  the  duties  imposed  on 
such  person,  on  pain  of  forfeiting  five  hundred  dollars  to 
the  use  of  the  poor  of  the  county,  in  or  for  vi^hich  the 
office  is  to  be  used,  and  of  being  ejected  from  his  office 
or  place  by  proper  pi-oceedings  for  that  purpose. 

Worthy  v.  Barrett,  6S— 199;  Moore  v.  Bondinot,  64—191-  State  v  Cans- 
ler,  75—442. 


CHAPTEE  FORTY-SIX. 
OPFIOIAL  BONDS. 


Section. 

1874.  Official  bonds  to  be  renewed 
annually. 

1875.  Vacancy  on  failure  to  renew 
bonds. 

1876.  Surety  on  official  bonds  to  jus- 
tify. 

1877.  Approval,  execution  and  cus- 
tody of  official  bonds. 

1878.  Clerk  to  record  yeas  and 
nays  of  commissioners  voting 
on  approval  of  official  bonds. 

1879.  Commissioners  liable  as  surety, 
when. 

1880.  Commissioners  also  liable  to 
indiclment. 

1881.  Record  of  the  board  conclu- 
sive evidence  of  the  facts 
stated  therein. 

1882.  Penalty  on  officers  acting  with- 
out giving  bond. 

1883.  Suits  on  official  bonds. 

1884.  Complaint  must  show  in  whose 
behalf  suit  brought.  | 


Section. 

1885.  When  official  bond  insufficient; 
judge  may  require  a  good  one 
to  be  given. 

1886.  Appointee  to  give  bond. 

1887.  When  vacancy  declared,  judge 
shall  file  statement  of  his  pro- 
ceeding with  clerk  of  board  of 
commissioners;  commissioners 
not  to  be  surety  on  official 
bonds. 

1888.  Sheriff,  or  other  officer,  liable 
for  whole  debt,  in  case  of 
negligence. 

1889.  Summary  remedy  on  official 
bond  in  superior  court. 

1890.  Damages  of  twelve  per  cent, 
against  officers  on  money  un- 
lawfully detained. 

1891.  Irregularity  in  taking,  or  in 
the  form  of  bonds,  not  to  in- 
validate them. 


Chap.  46.]  OFFICIAL  BONDS.  Yll 

Sec.  1874.  Official  bonds  to  be  renewed  annually.     1869- 
'70,  c.  169,  s.  1.    1876-'7,  c.  276,  s.  5. 

Every  clerk,  treasurer,  sheriff,  coroner,  register  of 
deeds,  surveyor,  and  every  other  officer  of  the  several 
counties  who  is  required  by  law  to  give  a  bond  for  the 
faithful  performance  of  the  duties  of  his  office,  shall  reg- 
ularly renew  his  official  bond  before  the  board  of  com- 
missioners of  the  county  who  shall  approve  the  same,  on 
the  first  Monday  of  December  of  each  year;  but  nothmg 
herein  shall  be  deemed  to  modify  or  repeal  any  provision 
of  law  whereby  the  commisioners  are  empowered  at  any 
time  to  require  the  sheriff,  county  treasurer,  or  other 
officer,  to  renew  or  justify  his  bonds. 

Fagan  v.  "WilliamsoD,  8  Jon.,  433;  Fell  v.  Porter,  69—140;  Worley  v 
Smith,  81—304;  Kilburn  v.  Latham,  81—312. 

Sec.  1875.  Vacancy  on  failure  to  renew  bond.    1869-'70, 
c.  169,  s.  2. 

Upon  the  failure  of  any  such  officer  to  make  such  reg- 
ular annual  renewal  of  his  bond,  it  is  the  duty  of  the 
board  of  commissioners,  by  an  order  to  be  entered  of 
record  to  declare  his  office  vacant,  and  to  proceed  forth 
with  to  appoint  a  successor;  if  the  power  of  fiUing  the 
vacancy  in  the  particular  case  be  vested  in  the  board  of 
commissioners;  but  if  otherwise,  the  said  board  shall  im- 
mediately inform  the  proper  person  having  the  power  of 
appointment  of  the  fact  of  such  vacancy. 

68—255;  Vann  v.  Pipkin,  77—408;  Worley  v.  Smith,  81—304. 

Sec.  1876.  Surety  on  official  bonds  to  justify.     1869-'70, 
c.  169,  s.  3.    1879,  c.  307,  s.  1. 

Every  surety  on  an  official  bond  required  by  law  to  be 
taken  or  renewed  and  approved  by  the  board  of  commis- 
sioners, shall  take  and  subscribe  an  oath  before  the  chair- 
man of  the  board  or  before  the  clerk  of  the  superior 
court,  that  he  is  worth  a  certain  sum  (which  shall  be  not 
less  than  one  thousand  dollars)  over  and  above  all  his 
debts  and  liabilities  and  his  homestead  and  personal  prop- 
erty exemptions,  and  the  sum  thus  sworn  to  shall  in  no 
case  be  less  in  the  aggregate  than  the  penalty  of  the 
bond. 

Sec.  1877.  Approval,  execution  and   custody  of  official 
bonds.     1869-'70,  c.  169,  s.  4.    1879,  c.  207,  s.  2. 

The  approval  of  all  official  bonds  taken  or  renew^ed  by 
the  board  of  commissioner?  shall  be  recorded  by  their 
clerk.     Every  such  bond  shall  be  acknowledged  by  the 


712  OFFICIAL  BONDS.  [Chap.  46. 

parties  thereto  or  proved  by  a  subscribing  witness,  before 
the  chairmau  of  the  board  of  commissioners,  or  before 
the  clerk  of  the  superior  court,  registered  in  the  register's 
office  in  a  separate  book  to  be  kept  for  the  registration  of 
official  bonds,  and  the  original  bond,  with  the  approval 
of  the  commissioners  indorsed  thereon  and  certihed  by 
their  chairman,  shall  be  deposited  with  the  clerk  of  the 
supei-ior  court,  except  the  bond  of  said  clerk,  which  shall 
be  deposited  with  the  register  of  deeds  for  safe  keeping. 

Cox  V.  Blair,  76—78. 

Sec.  1878.  Clerk  to  record  yeas  and  nays  of  commission- 
ers voting  on  approval  of  official  bonds.  1869-'70,  c. 
169,  s.  5.  R.  C,  c.  78,  s.  7.  1790,0.327.    1809,c.  777. 

It  is  the  duty  of  the  clei-k  of  the  board  of  commission- 
ers to  record  in  the  proceedings  of  the  board  the  names 
of  those  commissioners  who  are  present  at  the  time  of 
the  approval  of  any  official  bond,  and  who  shall  vote  for 
such  approval,  and  every  clerk  neglecting  to  make  such 
record  is  guilty  of  a  misdemeanor  and  beside  other  pun- 
ishment shall  forfeit  his  office. 

Sec.  1879.  Commissioner's  liability  as  surety,  when. 
1869-'70,  c.  109,  s.  C. 

Every  commissioner  who  approves  an  official  bond, 
which  he  knows  or  believes  to  be  insufficient  in  the 
penal  sum,  or  in  the  security  thereof,  shall  be  hable  as  if 
he  were  a  surety  thereto,  and  may  be  sued  accordingly 
by  any  person  having  a  cause  of  action  on  said  bond. 

Sec.  1880.  Commissioner  also  liable  to  indictment.  1869- 
'70,  c.  169,  s.  7. 

Every  commissioner  hable  as  in  the  last  section 
prescribed  shall  be  moreover  liable  to  a  criminal  ac- 
tion, and,  on  conviction,  shall  be  removed  from  office 
and  forever  disqualilied  from  holding  or  enjoying  any 
office  of  honor,  trust  or  profit  under  the  state. 

Sec.  1881.  Record  of  the  board  conclusive  evidence  of 
the  facts  stated  therein.    1869-'70,  c.  169,  s.  8. 

In  all  actions  under  the  two  preceding  sections,  a  copy 
of  the  proceedings  of  the  board  of  commissioners  in  the 
particular  case,  certified  by  their  clerk  under  his  hand 
and  seal  of  the  county,  shall  be  conclusive  evidence  of 
the  facts  in  such  record  alleged  and  set  forth,  but  any 
commissioner  may  cause  his  written  dissent  to  be  entered 
on  the  records  of  the  board. 


I 


Chap.  46.]  OFFICIAL  BONDS.  713 

Sec.  1883.  Penalty  on  officers  acting  without  giving  bond. 
1869-'70,  c.  169,  s.  9.    K.  C,  c.  78,  s.  8. 

Every  person  or  officer  of  whom  an  official  bond  is 
required,  vrho  shall  presume  to  discharge  any  duty  of  his 
office  before  executing  such  bond  in  the  manner  pre- 
scribed by  law,  is  liable  to  a  forfeiture  of  five  hundred 
dollars  to  the  use  of  the  state  for  each  attempt  so  to 
exercise  his  office,  and  is  moreover  hable  to  a  crimmal 
action,  and  upon  conviction  shall  be  ejected  from  office 
and  be  forever  disquahfied  from  holding  or  enjoymg 
any  office  of  honor,  trust  or  profit  under  this  state. 

State  V.  McEntyre,  3  Ired.,  171;  Burke  v.  Elliott,  41red.,355;  Gillinm 
V.  Eeddick,  4  Ired.,  368;  Mabry  v.  Tunentine,  Sired.,  201;  Hoell  v.  Cobb, 
4  Jon.,  258. 

Sec.  1883.  Suits  on  official  bonds.  R.  C,  c.  78,  s.  1.  1 793, 
c.  384,  s.  1.  1833,  c.  17.  1835,  c.  1336.  1869-'70, 
c.  169,  s.  lO. 

Every  person  injured  by  the  neglect,  misconduct,  mis- 
behavior in  office  of  any  clerk  of  the  superior  court,  reg- 
ister, entry-taker,  surveyor,  sheriff,  coroner,  constable, 
county  treasurer,  or  other  officer  may  institute  a  suit  or 
suits  against  said  officer  or  any  of  them  and  their  sureties 
upon  their  respective  bonds  for  the  due  performance  of 
their  duties  in  office  in  the  name  of  the  state,  without 
any  assignment  thereof  ;  and  no  such  bond  shall  become 
void  upon  the  first  recovery,  or  if  judgment  shall  be  given 
for  the  defendant,  but  may  be  put  in  suit  and  prosecuted 
from  time  to  time  until  the  whole  penalty  shall  be  recov- 
ered, and  every  such  officer,  and  the  sureties  on  his  offi- 
cial bond,  shall  be  liable  to  the  person  injured  for  all  acts 
done  by  said  officer  by  virtue  or  under  color  of  his  office. 

Guess  V.  Bnrbee,  6  Ired.,  279;  Robeson  County  v.  McAlpin,  6  Ired.. 
347;  Miller  V.  Davis,  7  Ired.,  198;  Pool  v.  Cox,  9  Ired.,  69;  Boger  v.  Brad- 
shaw,  10  Ired..  239;  Fagan  v.  Williams,  8  Jon.,  433;  Fell  v.  Porter,  69— 
140;  75—347;  Havens  v.  Lathene,  75—505;  Cox  v.  Blair,  76—78;  Vann 
V.  Pipkin,  77—408;  78—174,  181;  City  of  Wilmington  v.  Nutt,  80—365 

Sec.  1884.  Complaint  must  show  in  whose  behalf  suit 
brought.  K.C.,c.  78,  s.  3.  1793,  c.  384,  ss.  3,3.  1869- 
'70,  c.  169,  s.  11. 

Any  person  who  may  bring  suit  in  manner  aforesaid 
shall  state  in  his  complaint  on  whose  relation  and  in  whose 
behalf  the  suit  is  brought,  and  he  shall  be  entitled  to  re- 
ceive to  his  own  use  the  money  recovered,  hut  nothing 
herein  contained  shall  prevent  such  person  from  bringing 


714  OFFICIAL  BONDS.  [Chap.  46. 

at  his  election  an  action  against  the  officer  to  recover  spe- 
cial damages  for  his  injury. 

Fagan  v.  Williams,  8  Jon.,  433. 

Sec.  1885.  When  official  bond  insufficient,  judge  may  re- 
quire a  good  one  to  be  given.  1874-'5,  c.  120,  s.  1. 

Whenever  oath  shall  be  made  before  any  judge  of  the 
superior  court  by  five  respectable  citizens  of  any  county 
within  his  district  that  after  diligent  inquiry  made  they 
verily  beheve  that  the  bond  of  any  officer  of  such  county, 
which  has  been  accepted  by  the  board  of  commissioners, 
is  insufficient  either  in  the  amount  of  the  penalty  or  in  the 
ability  of  the  sureties,  it  shall  be  the  duty  of  such  judge 
to  cause  a  notice  to  be  served  upon  such  officer  requiring 
him  to  appear  at  some  stated  time  and  place  and  justify  his 
bond  by  evidence  other  than  that  of  himself  or  his  sure- 
ties._  And  if  this  evidence  so  produced  shall  fail  to  satisfy 
the  judge  that  the  bond  is  sufficient,  both  in  amount  and 
the  ability  of  the  sm-eties,  he  shall  give  time  to  the  officer, 
not  exceeding  twenty  days,  to  give  another  bond,  the 
judge  fixing  the  amount  of  the  new  bond,  when  there  is 
a  deficiency  in  that  particular.  And  upon  failure  to  give 
a  good  bond  to  the  satisfaction  of  the'  judge  within  the 
twenty  days,  he  shall  declare  the  office  vacant,  and  if  the 
appointment  be  with  himself,  he  shall  immediately  pro- 
ceed to  fill  the  vacancy  ;  and  if  not,  he  shall  notify  the 
persons  having  the  appointing  power,  that  they  may  pro- 
ceed as  aforesaid. 

Mitchell  V.  Kilburn,  74—483;  Mitchell  v.  Hubbs,  74—484;  Mitchell  v. 
West,  74—485. 

Sec.  1886.  Appointee  to  give  bond.    1874-'5,  c.  120,  s.  2. 

The  person  so  appointed  shall  give  bond  before  the 
judge,  and  the  bond  so  given  shall  in  all  respects  be  sub- 
ject to  the  requirements  of  the  law  in  relation  to  official 
bonds;  and  all  official  bonds  shall  be  considered  debts 
and  habilities. 

Sec.  1887.  When  vacancy  declared,  judge  shall  file  state- 
ment of  his  proceeding  with  clerk  of  commissioners; 
commissioner  not  to  be  surety  on  official  bond.  1874- 
'6,  c.  120,  s.  3. 

Whenever  a  vacancy  shall  be  declared  by  the  judge, 
be  shall  file  a  written  statement  of  aU  his  proceedings 
with  the  clerk  of  the  board  of  commissioners,  to  be  re- 
corded by  him.  No  member  of  the  board  of  commission- 
ers, or  any  other  person  authoi-ized  to  take  ofiicial  bonds 


Chap.  46.]  OFFICIAL  BONDS.  715 

of  any  county,  shall  sign  as  surety  on  any  ofificial  bond, 
upon  the  sufficiency  of  which  the  board,  of  which  he  is  a 
member,  may  have  to  pass. 

Sec.  1888.  SUeriflF,  or  other  officer,  liable  for  whole 
debt,  in  case  of  negligence.  K.  C,  c.  78,  s.  3.  1844,  c. 
64.    1869-'70,  c.  169,  s.  12. 

When  a  claim  shall  be  placed  in  the  hands  of  any  sheriff, 
coroner  or  constable  for  collection,  and  he  shall  not  use 
due  diligence  in  collecting  the  same,  he  shall  be  liable  for 
the  full  amount  of  the  claim  notwithstanding  the  debtor 
may  have  been  at  all  times  and  is  then  able  to  pay  the 
amount  thereof. 

Williams  V. Williamson,  6  Ired.,  281;  Hubbard  v. Wall,  9Ired.,  20;  Nixon 
v.  Bagby,  7  Jon.,  5;  McLaurin  v.  Buchanan,  Winst.  L.,  93;  Lipscomb  v. 
Cheeli,  Pliil.,  333. 

Sec.  1889.  Summary  i-emedy  on  official  bond  in  superior 
court.  R.  C,  c.  78,  s.  5.  1819,  c.  1002,  s.  1.  1869- 
'70,  c.  169,  s.  14.     1876-'7,  c.  41,  s.  2. 

Whenever  a  sheriff,  coroner,  constable,  clerk,  county 
or  town  treasurer,  or  other  officer,  shall  have  collected  or 
received  any  money  by  virtue  or  under  color  of  his  office, 
and  on  demand  shall  fail  to  pay  the  same  to  the  person 
entitled  to  require  the  payment  thereof,  the  person  there- 
by aggrieved  may  move  for  judgment  in  the  superior 
court  against  such  officer  and  his  sureties  for  any  sum 
demanded;  and  the  court  shall  try  the  same  and  render 
judgment  at  the  term  when  the  motion  shall  be  made, 
but  ten  days'  notice  in  writing  of  the  motion  must  have 
been  previously  given. 

State  Bank  v.  Davenport,  2  D.  &  B.,  45;  Guess  v.  Barbee,  6  Ired.,  379; 
Martin  v.  Long-,  8  Ired.,  415;  Ellis  v.  Long,  8  Ired.,  513;  Buttsv.  Brown,  11 
Ired.,  141;  O'Leary  v.  Harrison,  6  Jon.,  338;  Brougblon  v.  Haywood.  Pbil., 
380;  Fell  v.  Porter,  09—140;  State  ex  rel.  Bryan  v.  Rousseau  &  Brown,  71 
—194;  Cooper  v.  Williams,  75—94;  Smith  v.  Moore.  79—83;  Curtis'  Heirs, 
ex  parte,  82—435;  Wall  v.  Covington.  83—144;  Kerr  v.  Brandon,  84—128. 

Sec.  1890.  Damages  of  twelve  per  cent,  against  officers  on 
money  unlawfully  detained.  K.  C,  c.  78,  s.  9.  1819, 
c.  1002,  s.  2.     18G9-'70,  c.  109,  s.  15. 

Whenever  money  received  as  aforesaid  shall  be  unlaw- 
fully detained  by  any  of  said  officers,  and  the  same  shall 
be  sued  for  in  any  mode  whatevei*,  the  plaintiff  shall  be 
entitled  to  recover,  besides  the  sum  detained,  damages  at 
the  rate  of  twelve  per  centum  j^er  annum  from  the  time 
of  detention  until  payment. 

Broughton  v.  Haywood,  Phil.,  380. 


716 


PAETITION. 


[Chap,  47 


Sec.  1891.  Irregriilarity  in  taking  or  in  the  form  of  bonds, 
not  to  invalidate  them.  R.  C,  c.  78,  s.  9.  1842  c  Ol 
1869-'70,  c.  1G9,  s.  2.  '  ' 

Whenever  any  instrument  shall  be  taken  by  or  received 
under  the  sanction  of  the  board  of  county  commission- 
ers, or  by  any  person  or  persons  acting  under  or  in  virtue 
of  any  public  authority,  purportmg  to  be  a  bond  execut- 
ed to  the  state  for  the  performance  of  any  duty  belonging 
to  any  office  or  appointment,  such  instrument,  notwith- 
standmg  any  irregularity  or  invahdity  in  the  conferring 
of  the  office  or  making  of  the  appointment,  or  any  vari- 
ance m  the  penalty  or  condition  of  the  instrument  from 
the  provision  prescribed  by  law,  shall  be  valid  and  may 
be  put  in  suit  in  the  name  of  the  state  for  the  benefit  of 
the  pei-son  injured  by  a  breach  of  the  condition  thereof, 
in  the  same  manner  as  if  the  office  had  been  duly  con- 
ferred or  the  appointment  duly  made,  and  as  if  the 
penalty  and  condition  of  the  instrument  had  conformed 
to  the  provisions  of  law:  Provided,  that  no  action  shall  be 
sustained  thereon  because  of  a  breach  of  any  condition 
thereof  or  any  part  of  the  condition  thereof  which  is 
contrary  to  law. 

Jordan  v.  Pool,  5  Ircd.,  105;  Merrill  v.  McMinn.  7  Ircd.,  344;  Murray  v. 
Jones,  7  Ired.,  359;  Hoell  v.  Cobb,  4  Jou.,  208;  Hunter  v.  Roulledgc,  CJon., 
216;  Grier  v.  Hill,  C  Jon.,  .'573;  Sliipman  v.  McMinn,  TVinst.  L.,  I22': 
Barnes  v.  Lewis,  73—138;  Prairie  v.  Jenkins,  75—545;  Greensboro' v.  Scott, 
84—184;  Ccm'rs  v.  Magnin,  86—285. 


CHAPTEE  FOETY-SEVEN. 


PARTITION. 


Section. 

1892.  Appointment  of  commission- 
er.?. 

1893.  Oath  of  commissioners. 

1894.  Duty  of  comn)issi(>iier.s. 

1895.  May  employ  a  surveyor. 
1890.  Kcport  of  commissioners. 

1897.  Decree  of  confirmation,  effect 
of. 

1898.  Where    land    lies    in    several 
counties. 


Section. 

1899.  Sums  to  bear  interest. 

1900.  Sumschargcd  on  minors,  when 
payable. 

1901.  Compensation  of  cominis.sion- 
ers;  jienalty. 

1902.  Costs,  how  paid. 

1903.  Saleof  real  estate;  application, 
how  made. 

1904    When  sale  to  be  ordered,  and 
terms. 


Chap.  47.] 


PAETITION. 


717 


Section. 

1905.  Notice  of  sale. 

1906.  Who  aulhorizcd  to  sell. 

1907.  Lands  required  to  be  sold  for 
public  purposes;  procedure. 

1908.  Proceeds  to  be  secured  to  cer- 
tain persons. 

1909.  Dower  may  be  apportioned. 

1910.  Compensation  of  person  ap- 
pointed to  sell. 

1911.  Proceedings  when  lands  lie 
partly  in  this  state  and  partly 
in  another. 

1912.  Court  may  decree  partition. 

1913.  Commissioners  to  be  appoint- 
ed, their  duty;  final  decree; 
court  shall  compel  parties  to 
execute  and  deliver  deeds; 
when  court  to  declare  decree 
conclusive. 


Section. 

1914.  Decree  for  partition  in  another 
state,  when  enforced  in  Ihis. 

1915.  Judge  to  decide  in  reference 
to  law  passed  by  anotlier 
state. 

1916.  Pay  of  commissioners. 

1917.  Partition  of  personal  property, 
how  made. 

1918.  Confirmation  of  report. 

1919.  When  sale  ordered. 

1920.  Notice  of  sale,  &c. 

1921.  Confirmation  and  effect  of 
deed. 

1933.  Compensation  of  commission- 
ers. 

Procedure   as    in  special  pro- 
ceedings. 


1933. 


Sec.  1892.  Appointment  of  commissioners.     1868-'9,  c. 
122,  s.  1. 

The  superior  courts  on  petition  of  one  or  more  persons 
claiming  real  estate  as  tenants  in  common,  shall  appoint 
three  disinterested  commissioners  to  divide  and  apportion 
such  real  estate,  or  so  much  thereof  as  the  court  may 
deem  best,  among  the  several  tenants  in  common. 

Maxwell  V.  Maxwell,  8  Ired.  Eq.,  25;  Holmes  v.  Holmes,  3  Jon.  Eq., 
334;  Watson  v.  Watson,  3  Jon.  Eq.,  400;  Purvis  v.  Purvis,  5  Jon.,  22; 
Hinton  V.  Whitehurst,  G8— 316;  Gregory  v.  Gregory,  69—532;  Hiuton  v. 
Whitehurst,  71—68;  Collins  ex  parte,  71—336;  Keener  v.  Den,  73—133; 
Covington  v.  Covington,  73—168;  Hinton  v.  Whitehurst,  73—157;  Mc- 
Brydc  v.  Patterson,  73—478;  Williams  v.  Hassell,  74 — 434;  Medlin  v.  Steele, 
75—154;  Hinton  v.  Wliilehurst,  75—178;  McEachern  v.  Gilchrist,  75—196; 
Parks  V.  Siler,  76— 191 ;  Justice  v.  Guion,  76—443;  Neely  v.  Neely,  79— 
478;  Bell  v.  Adams,  81—118;  Wahab  v.  Smith,  83—229;  Pope  v.  Matthis, 
83—169;  Simpson  v.  Wallace,  83—477;  Kelly  v.  McCallum,  83—563; 
Finch  V.  Baskerville,  85—205;  Capps  v.  Capps,  85—408;  K.  C,  c.  83,  cases 
there  cited. 


Sec.  1893.  Oath  of  commissioners.     1868-'9,  c.   122,  s.  2. 

The  commissioners  shall  be  sworn  by  a  justice  of  the 
peace,  or  otiier  person  authorized  to  administer  oaths,  to 
do  justice  among  the  tenants  in  common,  in  respect  to 
such  partition,  according  to  their  best  skUl  and  ability. 


718  PARTITION.  [Chap.  47. 

Sec.  1894.  Duty  of  commissioners.     1868-'0,  c.  122   s.  3. 

The  commissioners,  who  shall  be  summoned  by  the 
sheriff,  or  any  constable,  must  meet  on  the  premises  and 
partition  the  same  among  the  tenants  in  common,  ac- 
cordmg  to  their  respective  rights  and  interests  therein 
by  dividing  the  land  into  equal  shares  in  point  of  value 
as  nearly  as  possible,  and  for  this  purpose  they  are  em- 
powered to  sub-divide  the  more  valuable  tracts  as  they 
may  deem  best,  and  to  charge  the  more  valuable  divi- 
dends with  such  sums  of  money  as  they  may  think  nec- 
essary, to  be  paid  to  the  dividends  of  inferior  value  in 
order  to  make  an  equitable  partition.  ' 

"Wynne  V.  Tunstall,  1  Dev.  Ecj.,  23;  Samuel  v.  Zachery,  4  lied.,  377- 
Twitty  V.  Camp,  Pliil.  Eq.,  61;  Pope  v.  Whitebead,  68—191;  Pull'en  v.' 
Heron  Mining  Co.,  71—563;  Collett  v.  Henderson,  80—337;  Waring  v. 
Wadswoith,  80—34.5;  Simmons  v.  Foscue,  81—86;  Halso  v.  Cole,  83—161! 

Sec.  1895.  May  employ  a  surveyor.    1868-'9,  c.  123,  s.  4. 

The  commissioners  are  authorized  to  employ  the  county 
surveyor,  or  in  his  absence,  or  if  he  be  connected  with  the 
parties,  some  other  surveyor,  who  shall  make  out  a  map 
of  the  premises  showing  the  quantity,  courses  and  dis- 
tances of  each  share,  which  map  shall  accompany  and 
form  a  part  of  the  report  of  the  commissioners. 

See.  1896.   Report  of  commissioners.     1868-'9,  c,  122 

s.  5. 

The  commissioners,  within  a  reasonable  time,  not  ex- 
ceeding sixty  days  after  the  notification  of  their  appoint- 
ment, shall  make  a  full  and  ample  report  of  their 
proceedings,  under  the  hands  of  any  two  of  them, 
specifying  therein  the  manner  of  executing  their  trust 
and  describing  particularly  the  land  or  parcels  of  land 
divided,  and  the  share  allotted  to  each  tenant  in  severalty, 
with  the  sum  or  sums  chai-ged  on  the  more  valuable 
dividends  to  be  paid  to  those  of  inferior  value.  The 
report  shall  be  filed  in  the  office  of  the  superior  court 
clerk,  and  if  no  exception  thereto  be  filed  within  twenty 
days,  the  same  shall  be  confirmed:  Provided,  that  any 
party  after  confirmation  may  impeach  the  proceedings 
and  decrees  for  mistake,  fraud  or  collusion,  by  petition 
in  the  cause:  Provided,  further,  that  innocent  purcha- 
sers for  full  value  and  without  notice  shall  not  be  affected 
thereby. 

Nicelar  v.  Barhrick,  1  D.  &  B.,  257;  Ashbee  v.  Cowoll,  Busb.  Eq.,  158; 
Boat  ex  parte,  3  Jon.  Eq.,  4S2;  Archibald  v.  Davis,  4  Jon.,  133;  In  the 
matter  of  Yates,  6  Jon.  Eq.,  806;  Baird  v.  Baird,  Phil.  Eq.,  817;  Wood  v. 


Chap.  47.]  PARTITION.  719 

Parker.  63—379;  Ruffln  v.  Cox,  71—253;  University  v.  N.  C.  Railroud, 
76—103;  Blue  v.  Blue,  79—69;  Pritcliard  v.  Askew,  80— 86;  Waring  v. 
Wad^worth,  80—345;  Simmons  v.  Foscue.  81—86;  White  a: parte,  82—877; 
Alexander  v.  Robinson,  85 — 275;  Thompson  v.  Peebles.  85 — 418;  Turpin 
V.  Kelly,  85—399. 

Sec.  1897.  Decree  of  confirmation,  eflfect   of.    1868-'9, 
c.  122,  s.  6. 

Such  report  when  confirmed,  together  with  the  decree 
of  confirmation,  shall  be  enrolled  and  certified  to  the 
register,  and  registered  in  the  office  of  the  county  where 
such  real  estate  is  situated,  and  shall  be  binding  among 
and  between  the  claimants,  their  heirs  and  assigns. 

Mills  V.  Witherington,  2  D.  &  B.,  433;  Stewart  v.  Mizell.  8  Ired.  Eq., 
242;  Wright  v.  McCormick,  69—14;  Wright  v.  McCormick,  77—158;  Latta 
V.  Vickers,  82—501:  Cheatham  v.  Crews,  83—313;  Ivey  v.  McKinnon, 
84—651. 

Sec.  1898.  Where  land  lies  in  several  counties.    1868-'9, 
c.  122,  s.  7. 

In  cases  where  the  real  estate  lies  in  several  counties, 
the  petition  may  be  exhibited  in  the  superior  court  of  any 
one  of  such  counties,  in  which  a  part  thereof  is  situated. 

Sec.  1899.  Sums  to  bear  interest.    1868-'9,  c.  122,  s.  8. 

The  sums  of  money  due  from  the  more  valuable 
dividends  shall  bear  interest  mitil  paid. 

Turpin  v.  Kelly,  85—899. 

Sec.  1900.  Sums    charged    on     minors,     when    payable. 
1868-'9,  c.  122,  s.  9. 

When  a  minor  to  whom  a  more  valuable  dividend  shall 
fall  is  charged  with  the  payment  of  any  sum  the  money 
shall  not  be  payable  until  such  minor  ai'rivesat  the  age  of 
twenty-one  yeai's,  but  the  general  guardian,  if  there  be 
one,  must  pay  such  sum  whenever  assets  shall  come  into 
his  hands,  and  in  case  the  general  guardian  shall  have 
assets  which  he  did  not  so  apply,  he  shall  pay  out  of  his 
own  proper  estate  any  interest  that  may  have  accrued  in 
consequence  of  such  failure. 

Jones  V.  Cameron,  81—154;  Turpin  v.  Kelly,  85—899. 

Sec.    1901.    Compensation    of    commissioners;    penalty. 
1868-'9,  c.  122,  s.  10. 

The  commissioners  shall  be  allowed,  each  of  them,  the 
sum  of  one  dollar  j3er  diem  for  their  services,  and  if.  after 


'i'20  PARTITION.  [Chap.  47. 

accepting  the  trust,  they  or  any  of  them  unreasonably 
delay  or  neglect  to  execute  the  same,  every  such  delin- 
quent commissioner  shall  be  liable  to  the  penalty  of  fifty 
dollars,  to  be  recovered  by  action  by  the  petitioners. 

Sec.  1902.  Costs,  how  paid.    1868-'9,  c.  122,  s.  11. 

The  compensation  of  the  commissioners,  allowances  to 
parties,  the  expenses  incurred  for  surveying,  and  all  fees 
and  costs  of  the  proceeding  shall  be  paid  as  the  court  may 
direct. 

Sec,   1903.    Sale   of  real  estate,  application,  how  made. 
1868-'9,  c.  122,  s.  12. 

AppHcation  for  the  sale  of  real  estate  held  in  common 
may  be  made  by  petition  preferred  in  the  superior  court 
of  the  county  where  such  real  estate  or  some  part  thereof 
lies,  by  one  or  more  of  the  parties  interested  therein. 

Holmes  V.  Holmes,  2  Jon.  Eq.,  334;  Gregory  v.  Gregoiy,  G9— 522;  Kee- 
ner v.  Dtn,  73— 132;  Allen  V.  Chappell,  78—238;  Tmll  v.  Rice,  85—827: 
Capps  V.  Capps,  85 — 408. 

Sec.  1904.  When  sale  to  be  ordered,  and  terms.    1868-'9, 
c.  122,  s.  13. 

Whenever  it  appears  by  satisfactory  proof  that  an 
actual  partition  of  the  lands  cannot  be  made  without 
injury  to  some  or  all  of  tiie  parties  interested,  the  court 
shall  order  a  sale  of  the  property  described  in  the  petition, 
or  any  part  thei'eof,  on  such  terms  as  to  size  of  lots,  place 
or  manner  of  sale,  time  of  credit  and  security  for  payment 
of  purchase  money,  as  may  be  most  advantageous  to  the 
parties  concerned,  and,  on  the  coming  in  of  the  report  of 
sale  and  confirmation  thereof,  and  payment  of  the  pur- 
chase money,  the  title  shall  be  made  to  the  purchaser  or 
purchasers  at  such  time  and  by  such  person  as  the  court 
may  direct,  and  in  all  cases  where  the  persons  in  posses- 
sion have  been  made  parties  to  the  proceeding,  the  court 
may  grant  an  order  for  possession. 

Stewart  v.  Mizell,  8  Ired.  Eq.,  242;  Long  v.  Holt,  68— 53;  Gregory  v. 
Gregory.  09-522;  McBryde  v.  Patterson,  73—478;  Williams  v.  Hassell, 
74^-434;  Parks  v.  Slier,  7G— 191;  Jones  v.  Hemphill,  77— 42;  Brandon  v. 
Phelps,  77—44;  Lord  v.  Beard,  79—5;  Lord  v.  Meroncy,  79—14;  Iloff  v. 
Grafton,  79—592;  Burgin  v.  Burgin,  82—196;  Macay  ex  parte,  84—59; 
Trull  V.  Rice,  85—327;  Kemp  v.  Kemp,  85—491. 

Sec.  1906.    Notice  of  sale.    1868-'9,  c.  122,  s.  14. 

The  notice  of  sale,  under  this  proceeding,  shall  be  the 
same  as  required  by  law  on  sales  of  real  estate  by  sheriffs 
on  execution. 


■  Chap.  47.]  PARTITION.  721 

Sec.  1906.  Who  authorized  to  sell.     1868-'9,  c.  122,  s.  15. 

The  court  may  authorize  any  officer  thereof,  or  any 
other  competent  person,  to  be  designated  in  the  decree  of 
sale,  to  sell  the  real  estate  under  this  proceeding.  Such 
officer  or  person  shall  file  his  report  of  sale,  giving  full 
particulars  thereof,  within  ten  days  after  the  sale  in  the 
office  of  the  clerk  of  the  superior  court,  and  if  no  excep- 
tion thereto  is  filed  within  twenty  days,  the  same  shall  be 
confirmed:  Provided,  that  any  party,  after  the  confirma- 
tion, shall  be  allowed  to  impeach  the  proceedings  and 
decrees  for  mistake,  fraud  or  collusion,  by  petition  in  the 
cause:  Provided,  further,  that  innocent  purchasers  for 
full  value  and  without  notice  shall  not  be  aft'ected  thereby. 

The  Judges  v.  Deans,  2  Hawks,  93;  McNeil  v.  Morrison,  63—508; 
Havens  v.  Lathene,  75—505;  Cox  v.  Blair,  76—78;  Kerr  v.  Brandon,  84^ 
138;  McLean  v.  Patterson,  84—427. 

See.  1907.  L,ands  required  to  be  sold  for  public  purposes; 
procedure.     1868-'9,  c.  122,  s.  16. 

When  the  lands  of  joint  tenants  or  tenants  in  common 
are  required  for  public  purposes,  one  or  more  of  such 
tenants,  or  their  guardian  for  them,  may  file  a  petition 
verified  by  oath,  in  the  superior  court  of  the  county  where 
the  lands,  or  any  part  of  them  lie,  setting  forth  therein 
that  the  lands  are  required  for  public  purposes,  and  that 
their  interests  would  be  promoted  by  a  sale  thereof; 
whereupon  the  court,  all  proper  parties  being  before  it, 
and  the  facts  alleged  in  the  petition  being  ascertained  to 
be  true,  shall  order  a  sale  of  such  lands,  or  so  much 
thereof  as  may  be  necessary,  in  the  manner  and  on  the 
terms  it  deems  expedient.  And  the  expenses,  fees  and 
costs  of  this  proceeding  shall  be  paid  in  the  discretion  of 
the  court. 

Sec.  1908.  Proceeds  to  be  secured  to  certain  persons.    R. 
C,  c.  82,  s.  7.     1868-'9,  c.  122,  s.  17. 

When  a  sale  is  made  under  this  chapter,  and  any  party 
to  the  proceedings  be  an  infant,  a  married  woman,  non 
compos  mentis,  imprisoned,  or  beyond  the  limits  of  the 
state,  it  shall  be  the  duty  of  the  court  to  decree  the  share 
of  such  party,  in  the  proceeds  of  sale,  to  be  so  invested  or 
settled  that  the  same  may  be  secured  to  such  party  or  his 
real  representative. 

Scull  V.  Jernigan,  3  D.  &  B.  Eq.,  144;  Gillespie  v.  Foy,  5  Ired.  Eq.,  380; 
Dudley  V.  Winfield,  Busb.  Eq.,  91;  Bateman  v.  Latham,  3  Jon.   Eq.,   35; 
Jones  V.  Edwards,  8  Jon.,  336;  Allison  v.  Robinson,  78—232;  Hall  v.  Short, 
81—273;  Burein  v.  Burgin,  82—196. 
"31 


V23  PARTITION.  [Chap.  47. 

Sec.  1909.  Dower  may  be  apportioned.  1868-'9,  c.  123, 
s.  18. 
When  there  is  dower  or  right  of  dower  on  an}'  land, 
petitioned  to  be  sold  under  this  chapter,  the  woman  en- 
titled to  dower  or  right  of  dower  tlierein,  may  join  in  the 
petition;  and  on  a  decree  of  sale,  the  interest  of  one-thiid 
of  the  proceeds  shall  be  secured  and  paid  to  her  annually; 
or  in  lieu  of  such  annual  interest,  the  value  of  an  annu- 
ity of  six  per  cent,  on  such  third,  during  her  probable 
life,  shall  be  ascertained  and  paid  out  of  the  proceeds  to 
her  absolutely. 

Sec.  1910.  Compensatioa    of    person  ajrpointed  to  sell. 
1868-'9,  c.  132,  s.  19. 

In  sales  of  real  estate  under  this  chapter,  the  allowance 
for  services,  in  making  sale  and  title,  to  the  officer  or  per- 
son appointed  to  sell,  shall  be  as  follows:  For  sales  of  five 
hundred  dollars  or  less,  not  more  than  ten  dollars;  for 
sales  of  two  thousand  and  not  less  tlian  five  hundred 
dollars,  not  more  than  two  per  centum;  and,  when  the 
allowance  shall  amount  to  forty  dollars,  any  additional 
compensation  shall  not  exceed  the  rate  of  one  per 
centum. 

Sec.  1911.  Proceedings,  when  lands  lie  partly  in  this  state 
and  partly  in  another.     1808-'9,  c.  133,  s.  30. 

Whenever  on  the  death  of  any  person,  his  lands  in  this 
state,  and  in  another  state,  shall  descend  or  be  devised  to 
several  persons,  who,  by  the  law  of  this  and  the  other 
state,  shall  hold,  in  the  lands,  undivided  estates  as  ten- 
ants in  common,  or  by  any  other  undivided  tenancy,  and 
suchheii-s  or  devisees  cannot,  without  suit,  have  partition 
for  want  of  consent,  or  because  of  inability  in  any  of  the 
co-tenants,  then,  if  such  deceased  person  shall  have  been 
at  the  time  of  his  death,  a  resident  of  the  state,  or  not 
then  a  resident  of  any  of  the  states,  in  which  liis  lands 
lie,  and  in  the  last  case  the  most  valuable  ])art  of  such 
lands  shall  lie  in  this  stnte,  such  heir  or  devisee,  or  any 
]>erson  claiming  under  him,  may  file  a  petition  in  the 
superior  court  for  the  county  where  the  deceased  resided 
at  his  death,  or  where  any  part  of  the  land  lies  in  this 
state,  setting  forth  all  the  lauds  in  which  the  plaintiff  has 
an  undivided  estate,  without  and  within  the  state,  de- 
scribed by  their  names  and  boundaries,  or  by  the  adjoin- 
ing tracts,  and  also  the  estate  the  deceased  had  in  them, 
and  the  supposed  value  of  the  lands  in  each  state,  aiid 
the  share,  in  severalty,  to  which  the  plaintiff  and  each 


Chap.  4T.]  PAETITION.  723 

of  his  co-tenants  is  entitled  under  the  laws  of  the  sev- 
eral states,  and  praying  for  paitition  to  be  made  of  all 
the  tracts,  according  to  their  respective  interests,  and  the 
material  facts  set  forth  in  the  petition  shall  be  verified  by 
the  affidavit  of  the  plaintiff  or  his  guardian,  or  other  per- 
son, at  the  discretion  of  the  court;  and  all  persons  con- 
cerned in  interest  in  the  lands  shall  be  made  parties,  ac- 
cording to  the  practice  of  the  superior  couit  in  this  state. 

Sec.  1912.  Court  may  decree  partition.    1868-'9,  c.  132, 

s.  31. 

On  the  hearing  of  the  petition,  the  court  may  decree  a 
partition;  and  shall  allot  in  severalty  to  each  tenant  his  just 
share  of  the  lands,  according  to  the  value  of  his  inter- 
est in  the  same,  by  the  laws  of  the  several  states,  in  which 
they  are  situated. 

Sec.  1913.  Commissioners  to  be  appointed,  their  duty; 
final  decree;  court  sliall  compel  parties  to  execute  and 
deliver  deeds;  when  court  to  declare  decree  conclu- 
sive. 1868-'9,  c.  123,  s.  33. 

The  court  making  such  decree  shall  issue  a  commission 
to  three  respectable  freeholders  in  this  or  any  state  where 
any  part  of  the  land  may  lie,  unconnected  by  blood  or 
interest  with  the  parties,  directing  them  or  a  majority  of 
them,  to  make  partition  between  the  co-tenants,  plain- 
tiffs and  defendants  in  said  petition,  and  to  assign  each 
his  respective  share  in  the  value,  in  severalty,  in  any 
tract  or  tracts,  in  any  or  all  the  states;  and  before  mak- 
ing the  allotment  the  commissioners  shall  make  a  valua- 
tion of  all  the  lands  held  by  the  co-tenants  in  all  the 
said  states;  and  where  they  cannot,  without  injury  to  the 
value  of  some  shares,  make  an  exact  division  of  the 
lands,  they  shall  charge  the  more  valuable  dividends 
with  money  to  be  paid  to  the  tenants  of  a  less  valuable 
dividend  to  make  equality  of  partition,  and  they  shall 
report  their  proceedings  as  they  may  be  directed,  and  the 
report  shall  contain  a  val  uation  of  all  the  estate  in  this 
and  the  other  states,  and  the  division  among  the  co-ten- 
ants according  to  such  valuation;  and  the  court  may  con- 
firm such  report,  or  on  sufficient  cause  shown,  may  cor- 
rect and  alter,  or  set  it  aside  and  order  a  new  commission; 
and  where  any  sum  is  charged  upon  a  more  valuable 
dividend,  the  court  may  direct,  if  the  tenant  taking  such 
a  dividend  be  an  infant,  that  the  sum  charged  shall  not 
be  paid  till  a  future  day,  and  the  same  shall  bear  inter- 
est at  a  rate  not  greater  than  allowed  in  this  state:  Pro- 


724  PARTITION.  [Chap.  47. 

vided,  that  the  tenant  of  the  larger  dividend  may  dis- 
charge himself  from  accruing  interest  by  paymg  the 
whole  amount  due  at  any  time;  and  the  sum  due 
from  the  greater  dividend  shall  be  a  charge  on  the  land 
into  whose  hands  soever  it  may  come,  although  it  may 
be  taken  without  notice;  and  the  court  shall,  upon  the 
confirmation  of  any  report  of  the  commissioners,  make 
a  final  decree.  And  where  all  the  parties  are  within  the 
jurisdiction  of  this  court  the  court  shall,  by  the  usual 
proceedings,  direct  and  compel  the  parties  to  execute  and 
deliver  deeds  and  assurances,  sufficient,  by  the  laws  of  this 
state  and  the  other  states,  to  give  the  partition  full  force 
and  validity  in  all  the  states;  and  in  case  any  of  the  par- 
ties are  under  such  disabilities  that  they  cannot  execute 
such  assurances,  or  are  without  the  jurisdiction  of  the 
court,  then  the  court,  upon  receiving  evidence  from  the 
plaintiff,  that,  by  a  law  of  the  other  state  in  which  he 
the  parts  of  the  lands  described  in  the  petition  to  be  with- 
out this  state,  the  decree  can  have  effect  thereon,  shaE 
direct  the  decree  to  be  enrolled,  and  a  copy  of  it  shall  be 
registered  in  the  register's  office  of  all  the  counties 
within  this  state,  where  any  of  the  lands  lie;  and  a  copy 
shall  also  be  furnished  to  the  plaintiflf  or  other  party  in- 
terested, duly  certified,  to  the  end  that,  as  to  the  lands 
without  this  state,  it  mav  be  carried  into  effect  in  the 
state  in  which  the  said  lands  may  be,  in  such  manner  as 
said  state  may  direct;  and  on  satisfactory  evidence  being 
made  to  the  court  in  this  state  that  the  decree  may  have 
full  effect  by  the  law  of  such  other  state,  the  court  in 
this  state  shall  by  its  decree  declare  the  partition  in  the 
land  in  this  state  to  be  final  and  conclusive;  and  the  de- 
cree shall  be  firm  and  irreversible,  as  hereinafter  pro- 
vided; and  shall,  on  registration  as  aforesaid,  pass  to  the 
tenants  the  title  in  severalty  to  the  lands  in  this  state,  in 
the  same  manner  as  if  all  the  lands  mentioned  in  the 
decree  were  situate  within  this  state. 

Sec.  1914.  Decree  for  partition  in   another  state  when 
enforced  in  this  state.     l»68-'9,  c.  123,  s.  23. 

Where  real  estate  may  be  partly  in  this  state  and  partly 
in  another  state,  and  the  deceased  person  from  whoni  it 
was  derived  by  descent  or  devise,  was,  at  the  time  of  his 
death,  a  resident  of  some  other  state,  or  was  a  resident 
of  none  of  the  states  in  which  he  held  lands,  and  m  this 
last  case,  the  lands  of  which  he  was  seized  in  this  state 
were  of  less  value  than  the  lands  of  which  he  was  seized 
in  any  other  state,  the  courts  of  the  state  in  which  such 


Chap.  47.]  PARTITION.  72S 

deceased  person  had  his  residence  at  his  death,  or  in 
which  he  held  lands  of  greater  value  than  those  he  held 
in  this  state  shall  have  full  power  and  authority,  under 
any  law  passed  by  the  legislature  of  such  state,  substan- 
tially in  accordance  with  the  provisions  herein  made  on 
this  subject,  to  decree  partition  of  the  lands  in  this  state, 
together  with  those  within  such  other  state,  in  the  same 
manner  as  if  the  whole  real  estate  were  within  the  juris- 
diction of  such  court,  and  in  the  same  manner  as  the 
courts  in  this  state  are  directed  and  authorized  to  do  by 
the  preceding  section,  as  to  the  lands  of  deceased  persons 
resident  here  at  their  death,  or  having  lands  of  greater 
value  here  than  in  any  other  state ;  and  in  case  any 
person  having  an  interest  in  the  final  decree,  made  as 
aforesaid  in  another  state,  as  to  lands  in  this  state,  shall, 
within  twelve  months  after  the  same  may  be  entered  up 
in  the  courts  of  said  state,  produce  the  records  and  pro- 
ceedings of  such  courts  of  record  duly  certified  to  a 
superior  court  of  any  county  in  this  state,  where  any  of 
the  lands  of  this  state  lie,  the  court,  on  petition  ex  parte 
in  such  case,  shall  order  such  proceedings  to  be  entered 
of  record  in  the  court  of  this  state,  and  order  that  the 
said  decree  shall  be  of  the  same  force  and  validity  as  if  it 
had  been  a  decree  of  the  court  in  this  state  in  which  the 
petition  is  filed,  upon  a  petition  and  regular  proceedings 
had  thereon,  and  the  decree  of  the  court  of  such  other 
state,  and  the  proceedings  on  it  by  petition  in  the  superior 
court  in  this  state  confirming  it  and  giving  it  validity, 
being  enrolled  in  the  said  court  of  this  state  and  registered 
in  all  the  counties  where  the  lands  lie  in  this  state,  shall 
pass  the  lands  in  this  state  according  to  the  decree,  and 
shall  vest  estates  in  seveialty  therein  declared,  as  to  said 
landSjinthe  same  manner  and  with  the  same  efi'ect  in 
law,  as  if  the  lands  in  this  state  had  been  so  allotted  on  a 
petition  for  partition,  according  to  the  provisions  of  the 
former  sections  of  this  chapter. 

Sec.  1915.  Judge  to  decide  in  reference  to  law  passed  by 
another  state.    1868-'9,  c.  122,  s.  24. 

Where  a  copy  of  a  decree  and  proceedings  of  a  suit  in 
any  other  state  shall  be  produced,  as  in  the  preceding- 
section,  and  also  when  it  is  necessary  for  a  superior  court 
to  be  certified  that  its  decree  of  a  partition  of  lands  with- 
out this  state  and  within  the  territory  of  another  state, 
can  have  effect  therein,  it  shall  be  competent  for  the 
judge  of  the  superior  court  before  which  the  existence 
of  a  law  in  such  other  state  is  to  be  proved,  to  decide 


T26  PARTITION.  [Chap.  47. 

whether  any  act  of  the  legislature  of  such  state  has  been 
passed. 

Sec.  1916.  Pay  of  commissioners.    1868-'9,  c.  122,  s.  26. 

The  commissioners  appointed  to  divide  lands  lying  in 
this  and  another  state,  shall  be  entitled  to  three  dollars 
per  day  for  their  services;  which,  Avith  all  fees,  expenses 
and  costs,  shall  be  paid  as  tlie  court  may  direct. 

Sec.  1917.    Partition  of  personal   property,  how  made. 
1868-'9,  c,  122,  s.  27. 

When  any  persons  entitled  as  tenants  in  common  of 
personal  property,  desire  to  have  a  division  of  the  same, 
they,  or  either  of  them,  may  file  a  petition  in  the  superior 
court  for  that  purpose;  and  the  court,  if  it  think  the 
petitioners  entitled  to  relief,  shall  appoint  three  disin- 
terested commissioners,  who,  being  first  duly  sworn, 
shall  proceed  within  twenty  days  after  notice  of  their 
appointment,  to  divide  such  property  as  nearly  equal  as 
possible  among  the  tenants  in  common. 
Powell  V.  Hill,  64^169;  Grim  v.  Wicker,  80—343. 

Sec.  1918.  Confirmation  of  report.  1868-'9,  c.  122,  s.  28. 

The  commissioners  shall  report  their  proceedings  under 
the  hands  of  any  two  of  them,  and  file  their  report  in  the 
office  of  the  clerk  of  the  superior  court  within  five  days 
after  the  partition  was  made,  and  if  no  exception  thereto 
be  filed  within  twenty  days,  the  same  shall  be  confirmed: 
Provided,  that  any  party,  after  confirmation,  shall  be 
allowed  to  impeach  the  proceedings  and  decrees  for  mis- 
take, fraud  or  collusion,  by  petition  in  the  cause:  Pro- 
vided, further,  that  innocent  purchasers  for  full  value 
and  without  notice  shall  not  be  affected  thereby 

Sec.  1919.  When  sale  ordered.     1868-'9,  c.  122,  s.  29. 

If  a  division  of  such  personal  property  cannot  be  had 
without  injuiy  to  some  of  the  pai-ties  interested,  and  a 
sale  thereof  be  deemed  necessary,  the  court  shall  order  a 
sale  to  be  made  by  some  officer  of  the  court  or  other  com- 
petent person;  who  shall  file  his  report  of  sale  in  the  office 
of  the  clerk  of  the  court  within  ten  days  after  sale,  and 
if  no  exception  thereto  be  filed  within  twenty  days,  the 
same  shall  be  confirmed:  Provided,  that  any  party,  after 
confirmation,  shall  be  allowed  to  impeach  the  proceedings 
and  decrees  for  mistake,  fraud  or  collusion,  by  petition 
in  the  cause:  Provided,  further,  that  innocent  purchasers 


Chap.  47.]  PARTITION.  T27 

for  full  value  and  without  notice  shall  not  be  affected 
thereby. 

Power  V.  Hill,  64—169;  Miller  v.  Feezor,  82—193;  Kerrv.  Brandon,  84— 
128. 

Sec.  1920.  Notice  of  sale,  &c.    1868-'9,  c.  123,  s.  30. 

The  sale  shall  be  made  after  twenty  days'  notice,  by 
advertisement  in  three  or  more  public  places  m  the 
county,  and  shall  be  on  such  terms  as  the  court  may 
direct. 

Sec.  1921.  Confirmation  and  effect  of  deed.    1808-'9,  c. 
122,  s.  31. 

Upon  confirmation  of  the  report,  the  court  shall  secure 
to  each  tenant  in  common  his  ratable  share  in  severalty 
of  the  proceeds  of  sale;  and  the  deed  of  the  officer  or 
person  appointed  to  sell,  when  such  deed  is  directed  to  be 
made,  shall  convey  to  the  purchaser  such  title  and  estate 
in  the  property  as  the  tenants  in  common  had. 

Sec.  1923.  Compensation  of  commissioners.    18C8-'9,  c. 
122,  s.  32. 

The  commissioners  nominated  to  make  a  division,  and 
the  officer  or  person  appointed  to  make  a  sale  of  personal 
property  held  in  common,  shall  receive  for  their  services 
a  sum  to  be  fixed  by  the  court  and  taxed  in  the  bill  of 
fees  and  costs,  all  of  which  shall  be  paid  by  the  parties 
in  such  manner  as  the  court  may  decree. 

Sec.  1923.  Procedure  as  in  special  proceedings.   1868-'9, 
c.  122,  s.  33. 

The  procedure  in  all  cases  by  petition,  under  this  chap- 
ter, shall  be  the  same,  in  all  respects,  as  prescribed  by 
law  in  other  special  proceedings,  except  as  modified  by 
this  chapter. 


728 


PROCESSIONING. 


[Chap.  48. 


CHAPTER  FORTY-EIGHT. 


PEOOESSIONING. 


Section. 

1934.  Processioners  of  land  appoint- 
ed by  board  of  county  com- 
missioners. 

1925.  Oath  and  term  of  offlce. 

1926.  Owners  to  file  petition. 

1927.  Processioner  to  make  report 
and  return  it  to  clerk,  &c.,  to 
be  recorded. 

1928.  When  line  disputed,  and  pro- 
cessioner forbidden  to  proceed, 


Section. 

he  shall  report  to  court;  five 
freeholders  then  appointed 
■with  processioner. 

1929.  Person  having  land  proces- 
sioned deemed  owner;  who 
not  bound  by  processioning. 

1930.  Appeal  allowed. 

1931.  Surveyors  deemed  procession- 
ers; their  powers. 


Sec.  1924.  Processioners  of  land  appointed  l>y  board  of 
county  commissioners.  R.  C,  c.  88,  s.  1.  1792,  c. 
365,  ss.  1,  2,  4.     1804,  c.  670,  s.  2.     1869-'70,  c.  30. 

The  board  of  county  commissioners  shall  appoint  one 
or  more  persons  capable  of  surveying  to  act  as  proces- 
sioner in  their  respective  counties,  and  any  processioner, 
when  there  are  several,  may  act  alone. 

Sec.  1925.  0.atli  and  term  of  offlce.  B.  C,  c.  88,  s.  2. 
1792,  c.  365,  s.  3. 

Every  processioner  shall  take  an  oath  of  office,  and 
shall  continue  in  office  until  he  resign  or  remove  from 
the  county,  or  be  displaced  by  the  board  of  county  com- 
missioners. 

Sec.  1926.  Owners  to  file  petition. 

The  proprietor  of  any  land,  who  may  desire  to  have  it 
processioned,  shall  file  his  petition  in  the  superior  court 
of  the  county  in  which  some  part  of  the  land  may  be  sit- 
uated, setting  forth  the  line  or  lines  in  dispute,  and  mak- 
ing defendants  all  persons  whose  lands  adjoin  his;  the 
clerk  shall  thereupon  issue  a  summons  to  the  defendants 
as  in  other  cases  of  special  proceeding.  Upon  return  of 
the  summons  served,  the  clerk  shall  issue  an  order  to  a 
processioner  or  county  surveyor  of  his  county  to  proces- 
sion said  land  according  to  the  provisions  of  this  chapter. 
Before  the  processioner  shall  act,  the  petitioner  shall 
cause  to  be  served  on  each  defendant  a  written  notice  of 
the  time  when  the  processioner  will  attend  to  procession 


Chap.  48.J  PEOCESSIONING.  T29 

said  land,  which  shaU  be  served  five  days  prior  thereto; 
a  copy  of  said  notice,  signed  by  the  person  serving  it, 
shall  be  deUvered  to  the  processioner. 
Robbins  V.  Wiadley,  3  Jon.  Eq.,  386;  Bobbins  v.  Jackson,  63—309. 

Sec.  1927.  Processioner  to  make  report  and  return  it  to 
clerk,  &c.;  to  be  recorded  by  clerk.  K.  €.,  c.  88,  s.  5. 
1792,  c.  305,  ss.  6,  7,  8. 

The  processioner  shall  make  a  plot  of  each  tract  of 
laud  processioned,  and  a  report  which  shall  contain  the 
claimant's  name,  the  quantity  of  acres,  the  corners, 
leno-th.  and  course  of  each  line,  and  which  shall  be  signed 
and  returned  with  a  copy  of  the  several  notices,  to  the 
clerk  of  the  superior  court  of  the  county  for  which  the 
processioner  is  appointed,  and  unless  exception  thereto  be 
filed  within  ten  days,  the  same  shall  be  confirmed;  and 
the  same,  with  the  plot,  shall  be  recorded  by  the  clerk  in 
a  bound  book  kept  for  that  purpose,  and  filed  together  in 
his  office;  and  the  fees  of  the  processioner  and  clerk  shall 
be  paid  by  the  proprietor  of  the  land. 

Willson  V.  ShuflEord,  3  Mur.,  504;  Cansler  v.  Hoke,  3  Dev.,  268;  Car- 
penter V.  Wbitworth,  3  Ired.,  204;  Matthews  v.  Matthews,  4  Ired.,  155; 
Hoyle  V.  Wilson,  7  Ired.,  467. 

Sec.  1928.  How  processioner  to  proceed  In  cases  of  dis- 
puted lines.     1874-'5,  c.  40. 

When  a  line  is  disputed  and  the  processioner  is  forbid- 
den by  any  person  interested  in  the  event  of  the  proces- 
sioning, to  proceed  further  in  running  and  marking  the 
same.  Tie  shall  within  ten  days  report  the  matter,  stating 
truly  all  the  circumstances  of  the  case,  with  the  name  of 
the  person  who  forbade  further  proceeding,  to  the  supe- 
rior court  of  the  county,  and  the  said  court  shall  there- 
upon as  well  as  when  exception  shall  be  filed  as  provided 
in  tlie  preceding  section,  appoint  five  respectable  free- 
holders, a  majority  of  whom  shall  appear  with  the  pro- 
cessioner on  the  line  or  lines  so  disputed  and  proceed, 
after  being  sworn  by  the  processioner  or  some  justice  of 
the  peace ^to  do  equal  right  and  justice  between  the  con- 
tending parties,  to  establish  such  disputed  line  or  fines  a| 
shall  appear  to  them  right,  and  procession  the  same  and 
make  report  of  their  proceeding  within  thirty  days  to  the 
superior  court,  and  unless  exception  thereto  be  filed 
within  ten  days,  the  same  shall  be  confirmed  and  re- 
corded as  above  directed:  Provided,  that  either  party 
may  call  in  any  other  surveyor  to  act  with  the  proces- 


no  PROCESSIONING.  [Chap.  48. 

sioner,  and  complete  such  survey,  and  the  party  against 
whom  the  decision  is  made  shall  pay  all  costs. 

Carpenter  v.  Wbitworth,  3  Ired.,  204;  Miller  v.  Heart,  4  Ired.,  23;  Rob- 
bins  «a;i)arte,  63—309;  Britt  v.  Benton,  79—177. 

Sec.  1929.  Person  having  land  processioned,  deemed 
owner  ;  who  not  bound  by  processioning-.  K.  C,  c.  88, 
s.  7.     1723,  c.  14,  ss.  1,2. 

Every  person  whose  lands  shall  be  procesioned  to  him, 
according  to  the  directions  of  this  chapter,  shall  be 
deemed  and  adjudged  to  be  the  sole  owner  thereof;  and, 
upon  any  suit  commenced  for  such  lands,  the  party  in 
possession  may  plead,  and  give  the  proceedings  under 
this  chapter  in  evidence:  Provided,  that  the  procession- 
ing of  the  lands  of  a  tenant  for  life  shall  not  bar  or  pre- 
clude the  heir,  or  other  person  in  reversion  or  remainder; 
neither  shall  any  processioning  bar  or  preclude  femes  co- 
vert, persons  under  age,  non  conqjos  mentis,  imprisoned, 
or  out  of  the  state;  but  all  such  persons  may  sue  for, 
and  dispute  the  title  and  bounds  of  any  such  lands,  if 
they  will  commence  and  prosecute  their  suit  within 
the  time  limited  by  law,  after  the  removal  of  such 
disability. 

Britt  V.  Benton,  79—177. 

Sec.  1930.  Appeal  allowed. 

Any  party  shall  have  the  right  of  appeal  as  in  other 
cases  of  special  proceedings. 

Sec.  1931.  Surveyors  deemed  to  be  processioners ;  their 
powers.     1872-'3,  c.  57,  ss.  1,  2. 

The  county  surveyors  of  the  several  counties  shall  be 
processioners  in  their  respective  counties,  and  shall  have 
all  the  powers,  and  shall  be  subject  to  all  the  rules,  regu- 
lations and  restrictions  of  pi-ocessioners,  as  provided  in 
this  chapter. 


I 


Chap.  49.]       EAILROAD  COMPANIES. 


731 


CHAPTER  FORTY-NINE. 


EAILEOAD  AND  TELEGEAPH  COMPANIES. 


EAILROADS, 


Section. 

1932.  Rules  for  forming  railroad 
comi^anies;  name  of  company; 
route  of  railroad ;  capital  stock ; 
names  and  residences  of  di- 
rectors; articles  to  be  filed  in 
the  office  of  secretary  of 
state;  when  declared  a  cor- 
poration. 

1933.  Stock  must  be  subscribed  be- 
fore articles  are  filed ;  atfidavit 
made  by  directors,  and  pay- 
ment of  fifty  dollars  to  secre. 
tary  of  state  for  common 
school  purposes. 

1934.  Presumptive  evidence  of  in- 
corporation. 

1935.  Directors  to  open  books  of 
subscription. 

1936.  President  and  directors;  term 
of  office;  vote  by  shares;  va- 
cancies; qualification  of  offi- 
cers; title  acquired;  when  a 
corporation. 

1937.  Officers  appointed  by  the  pres- 
ident, &c. 

1938.  Payment  by  instalments;  stock 
forfeited. 

1939.  Insufficiency  of  stock  to  be 
increased;  meeting  of  stock- 
holders; time,  place  and  ob- 
ject of  meeting  to  be  publicly 
notified. 

1940.  Liabilities  of  stockholders;  exe- 
cution against  stockholders. 

1941.  Stockholders  liable  for  their 
■wards. 

1943.  Indebtedness  of  laborers,  how 
collected;  time  specified  for 
action. 


Section. 

1943.  Right  to  acquire  title  to  real 
estate. 

1944.  Petition  presented,  character 
of;  names  and  places  of  resi- 
dence to  be  given;  copy  of  pe- 
tition must  be  sent  to  the  supe- 
rior court; 

(1)  Persons  residing  in  this 
state  must  have  service  per- 
sonally; 

(2)  Non-residents  having 
agents,  public  notice  to  be 
given; 

(3)  Guardians  notified  for  in- 
fants; 

(4)  Respecting  idiots; 

(5)  Parties  unknown  are  pub- 
licly notified  by  papers  in 
the  state; 

(6)  Duty  of  court  to  appoint 
guardian  for  persous  of  un- 
sound mind;  security  re- 
quired. 

(7)  Cases  not  provided  for 
must  be  directed  by  superior 
court. 

1945.  Allegations  made  against  peti- 
tion; freeholders  appointed  to 
appraise  estate. 

1946.  Commissioners  to  l:e  qualified ; 
to  issue  subposnas,  administer 
oaths,  to  adjourn,  to  appraise 
and  report  under  hands  and 
seals;  either  side  may  tile  ex- 
ceptions before  clerk ;  may  ap- 
peal; upou  payment  of  sum 
appraised,  company  to  enter 
and  take  possession  during  ap- 
peal;   final    judgment;  court 


732 


EAILROAD  COMPANIES.       [Chap.  49. 


Section. 

to  have  power  to  enforce  judg- 
ment; land  to  belong  to  com- 
pany during  its  corporate  ex- 
istence; possession  of  land  not 
condemned  to  be  surrendered 
to  owner,  &c. ;  costs  at  the  dis- 
cretion of  judge  or  court. 

1947.  Court  may  adjudge  rights  of 
conflicting  claimants. 

1948.  Attorney  appointed  by  court 
to  protect  the  rights  of  parlies 
unknown  or  non-residents. 

1949.  Court  must  take  cognizance  of 
all  proceedings  not  provided 
for  in  this  chapter. 

1950.  Change  of  ownership  not  to 
affect  appraisal. 

1951.  Defective  title,  how  reme- 
died. 

1952.  Maps  of  route  to  be  made ;  no- 
tice given  to  occupants  of 
land;  superior  court  peti- 
tioned, when  route  is  objec- 
tionable; no  alteration  of 
route  allowable,  unless.  &c.; 
time  of  certificate;  compensa- 
tion. 

1953.  Discretionary  with  directors  to 
change  route  of  railroad  for 
its  improvement;  certificate 
of  alteration  to  be  filed  in 
clerk's  office;  no  change  made 
in  city,  unless  sanctioned  by 
majority  of  corporators;  com- 
pensation for  lands. 

1954.  Highways,  turnpikes,  &c.,  to 
l^rove  no  obstruction  to  rail- 
roads. 

1955.  Power  of  secretary  of  state 
and  town  authorities  in  certain 
cases  to  grant  laud. 

1956.  Superior  court  empowered  to 
authorize  guardians  to  sell 
land  of  insane  persons  for 
corporate  purposes;  court  may 
appoint  special  guardian; 
terms  of  sale,  &c. ;  report  to 
court. 


Section. 

1957.  Corporate  pwcrs: 

(1)  To  cause  survey,  &c.; 

(2)  Vohmlary  grants; 

(3)  Holding  property; 

(4)  Grade  of  road; 

(5)  Obstructions  not  allowable; 

(6)  Crossing,  intersecliug,  &c., 
of  railroads; 

(7)  Right  to  carry  persons  and 
property ; 

(8)  Erection  of  necessary  build- 
ings; 

(9)  Regulation    of    time    and 
manner  of  transporlaion ; 

(10)  Manner  of  raising  funds. 

1958.  Railroad  servants  to  wear  a 
badge. 

1959.  Annual  report  to  be  made, 
verified  and  filed  in  the  secre- 
tary of  state's  office;  state- 
ments to  be  made. 

1960.  Penalty  for  failing  to  report. 

1961.  General  assembly  may  reduce 
profits  upon  a  road. 

1962.  Passengers  violating  rules  of 
corporation  may  be  ejected. 

1963.  Rules  for  transportation. 

1964.  Railroads,  &c.,  to  receive  and 
forward  freights;  penalty  for 
refusal. 

1965.  To  keep  a  list  of  freight 
charges  posted;  not  to  be 
increased  without  notice;  pen- 
alty. 

1966.  Discrimination  in  freight  un- 
lawful; penalty;  special  con- 
tracts may  be  made. 

1967.  Freight  unshipped  for  five 
days;  penalty. 

1968.  Pooling  freights  and  rebates 
forbidden ;  penalty. 

1969.  Attorney-general  to  institute 
suits  in  certain  cases. 

1970.  Check  and  duplicate  for  bag- 
gage; corporation  liable  for 
loss  of  brtggage. 

1971.  How  trains  to  be  arranged; 
penalty. 


Chap.  49.]       RAILED  AD  COMPANIES. 


733 


» 


Section. 

1972.  Engineer  intoxicated,  a  mis- 
demeanor. 

1973.  Railroad  companies  prohibited 
from  loading  or  unloading 
freight  cars  on  Sunday,  and 
also  from  running  locomotives 
or  cars,  except  such  as  shall 
be  run  for  carrying  passengers 
or  the  mails. 

1974.  Injuries  to  railroad,  misde- 
meanor. 

1975.  Railroads  to  construct  cattle- 
guards;  failure,  misdemeanor. 

1976.  How  actions  may  be  brought. 

1977.  Chart  of  railroad  to  be  made 
and  filed. 

1978.  Injury  to  passengers  not  com- 
plying with  regulations. 

1979.  Unlawful  to  enter  railroad 
cars  after  being  forbidden; 
misdemeanor. 

1980.  Railroads  not  completed  in 
specified  time,  corporate  ex- 
istence ceases. 

1981.  General  assembly  may  annul 
any  corporation. 

1983.  Rights  and  privileges. 

1983.  Railroads  embracing  the  same 
location  of  line. 

1984.  Location  of  railroad  in  an  ad- 
joining state. 

1985.  Unclaimed  freight,  publica- 
tion thereof. 

1986.  Unclaimed  freight  perishable, 
what  done. 

1987.  Unclaimed  funds  to  go  to  the 
University. 

1988.  Police  force  may  be  estab- 
lished. 

1989.  Governor  to  appoint  police. 

1990.  Policemen  to  take  oath. 

1991.  Badge  of  policemen. 


Section. 

1993.  Compensation. 

1993.  Dismissal  of  police, 

1994.  Transfer  of  capital  stock ;  cer- 
tificate to  be  filed  in  office  of 
secretary  of  state. 

1995.  Directors  of  various  railroads 
authorized  to  make  arrange- 
ments to  give  through  freight 
and  travel. 

1996.  Subscription  to  stock  may  be 
made  by  board  of  county  com- 
missioners. 

1997.  Manner  in  which  subscriptions 
by  board  to  be  made;  pro- 
viso. 

1998.  Elections,  how  held. 

1999.  Interests  on  bonds,  how  paid. 

2000.  Taxes,  how  paid. 

2001.  Officers  of  railroads  to  ac- 
count to  their  successors;  pen- 
alty for  failure  or  refusal. 

2002.  Governor  may  make  a  requisi- 
tion upon  other  states. 

2003.  To  whom  the  provisions  of  the 
two  preceding  sections  are 
applicable. 

2004.  Two  hundred  and  fifty  dollars 
must  be  paid  before  bill  to  in- 
corporate or  to  amend  railroad 
charter  can  be  introduced. 

2005.  Company  dissolved,  &c.,  own- 
er or  purchaser  to  be  a  new 
corporation,  and  property,  &c. , 
taxed. 

2006.  Conditional  sale  of  railroad 
properly  invalid  as  to  subse- 
quent judgment  creditors  or 
purchasers,  unless  in  wi-iting 
and  registered;  property  sold 
to  bear  certain  marks;  not  to 
apply  to  contracts  heretofore 
made. 


TELEGRAPHS. 

Section.  I  Section. 

2007.  Telegraph     lines,    who    may    2008.  May 
maintain.  I  '"'ay. 


contract    for    right    of 


734 


RAILEOAD  COMPANIES.       [Chap.  49. 


Section. 

2009.  Entitled  to  right  of  wa}',  upon 
just  compensation. 

2010.  Proceedings  to  be  by  petition; 
facts  to  be  stated. 

2011.  Copy  of  petition  and  notice  to 
be  served  on  persons  claiming 
lands,  &c. 

2012.  Proceedings  for  condemnation; 


Section. 

appointment  of  commission- 
ers, Ibeir  report;  exceptions 
thereto;  appeal;  final  judg- 
ment, &c. ,  to  be  as  provided 
in  this  chapter  in  condemn- 
ing, ifcc,  for  railroads. 

2013.  Commissioners    may    inspect 
the  premises. 


Sec.  1932.  Kules  for  forming  railroad  companies;  name  of 
company;  route  of  railroad;  capital  stock;  names  and 
residences  of  directors;  articles  to  be  filed  in  the  office 
of  secretary  of  state;  when  declared  a  corporation. 
1871-'2,  c.  138,  s.  1. 

Any  number  of  persons,  not  less  than  twenty-five,  may 
form  a  company  for  the  purpose  of  constructing,  main- 
taining and  operating  a  railroad  for  public  use  in  the 
conveyance  of  persons  and  property,  or  for  the  purpose 
of  maintaining  and  operating  any  unincorporated  rail- 
road ah-eady  constructed  for  the  like  public  use;  and  for 
that  purpose  may  make  and  sign  articles  of  association, 
in  which  shall  be  stated  the  name  of  the  company,  the 
number  of  years  the  same  is  to  continue,  the  places  from 
and  to  which  the  road  is  constructed  or  maintained  and 
operated,  the  length  of  such  road  as  near  as  may  be,  and 
the  name  of  each  county  in  this  state  through  or  into 
which  it  is  made  or  intended  to  be  made,  the  amount  of 
the  capital  stock  of  the  company,  which  shall  not  be  less 
than  five  thousand  dollars  for  every  mile  of  road  con- 
structed or  proposed  to  be  constructed,  and  the  number 
of  shares  of  which  said  capital  stock  shall  consist,  and 
the  names  and  places  of  residence  of  six  directors  of  the 
company,  who  shall  manage  its  affairs  for  the  first  year, 
and  until  others  are  chosen  in  their  places.  Each  sub- 
scriber to  such  articles  of  association  shall  subscribe 
thereto  his  name,  place  of  residence,  and  the  number  of 
shares  of  stock  he  agrees  to  take  in  said  company.  On 
compliance  with  the  provisions  of  the  succeeding  section, 
such  articles  of  association  may  be  filed  in  the  office  of 
the  secretary  of  state,  who  shall  indorse  thereon  the  day 
they  are  filed,  and  record  the  same  in  a  book  to  be  pro- 
vided by  him  for  that  purpose;  and  thereupon  the  persons 
who  have  so  subscribed  such  articles  of  association,  and 
all  persons  who  shall  become  stockholders  in  such  com- 
pany, shall  be  a  coiporation  by  the  name  specified  in 


Chap.  49.]       EAILROAD  COMPANIES.  735 

such  articles  of  association,  and  shall  possess  the  powers 
and  privileges  granted  to  corporations  by  this  chapter. 

Sec.  1933.  Stock  must  be  subscribed  before  articles  are 
filed;  affidavit  made  by  directors;  and  payment  of  fifty 
dollars  to  secretary  of  state  for  common  school  pur- 
poses.   1871-'3,  c.  138,  s.  2. 

Such  articles  of  association  shall  not  be  filed  and  re- 
corded in  the  office  of  the  secretary  of  state  until  at  least 
one  thousand  dollars  of  stock  for  every  mile  of  railroad 
proposed  to  be  made  is  subscribed  thereto,  and  five  per 
cent,  paid  thereon  in  good  faith,  and  in  cash,  to  the 
directors  named  in  said  articles  of  association ;  nor  until 
there  is  indorsed  thereon  or  annexed  thereto  an  affidavit 
made  by  at  least  three  of  the  directors  named  in  said 
articles,  that  the  amount  of  stock  required  by  this  section 
has  been  in  good  faith  subscribed  and  five  per  cent,  paid 
in  cash  thereon  as  aforesaid,  and  that  it  is  intended  in 
good  faith  to  construct  or  to  maintain  and  operate  the 
road  mentioned  in  such  articles  of  association,  which 
affidavit  shall  be  recorded  with  the  articles  of  association, 
as  aforesaid;  nor  until  said  directors  shall  pay  to  the 
secretary  of  state  the  sum  of  fifty  dollars,  which  said  sum 
shall  be  paid  by  the  secretary  of  state  to  the  state  trea- 
surer, and  by  him  placed  to  the  credit  of  the  public  school 
fund. 

Sec.  1934.  Presumptive  evidence  of  incorporation.  1871- 
'2,  c.  138,  s.  3. 

A  copy  of  any  articles  of  association  filed  and  recorded 
in  pursuance  of  this  chapter  and  of  the  record  thereof 
with  a  copy  of  the  affidavit  aforesaid  indorsed  thereon  or 
annexed  thereto,  and  certified  to  be  a  copy  by  the  secre- 
tary of  state,  shall  be  presumptive  evidence  of  the  incor- 
poration of  such  company,  and  of  the  facts  therein  stated. 

Sec.  1935.  Directors  to  open  books  of  subscription.  1871- 
'2,  c.  138,  s.  4. 

When  such  articles  of  association  and  affidavit  are  filed 
and  recorded  in  the  office  of  the  secretary  of  state,  the 
directors  named  in  said  articles  of  association  may,  in 
case  the  whole  of  the  capital  stock  is  not  before  sub- 
scribed, open  books  of  subscription  to  fill  up  the  capital 
stock  of  the  company  in  such  places  and  after  giving 
such  notice  as  they  may  deem  expedient,  and  may  con- 
tinue to   receive   subscriptions  vintil   the   whole  of  the 


V36  RAILROAD  COMPANIES.        [Chap.  49. 

capital  stock  is  subscribed;  at  the  time  of  subscribing 
every  subscriber  shall  pay  to  the  directore  five  per  cent, 
on  the  amount  subscribed  by  him  in  money,  and  no  sub- 
scription shall  be  received  or  taken  without  such  pay- 
ment. 


Sec.  1036.  Presideut  and  directors,  term  of  office;  vote  by 
shares;  vacancies;  qualilicatiou  of  officers;  title  ac- 
quired; when  a  cori)oration.     1871-'3,  c.  138,  s.  5. 

There  shall  be  a  board  of  six  directors  and  a  j^resident 
of  every  corporation  formed  under  this  chapter  to  manage 
its  afl'airs;  and  said  directors  and  president  shall  be 
chosen  annually  by  a  majoi'ity  of  the  votes  of  the  stock- 
holders voting  at  such  election,  in  such  manner  as  may 
be  prescribed  in  the  by-laws  of  the  corporation,  and  they 
may  and  shall  continue  in  office  until  others  are  elected 
in  their  places.  In  the  election  of  directors  and  ])resident 
each  stockholder  shall  be  entitled  to  one  vote  personally 
or  by  proxy  on  every  share  held  by  him  thirty  days 
previous  to  any  such  election,  and  vacancies  in  the  board 
of  directors  shall  be  filled  in  such  manner  as  shall  be  pre- 
scribed by  the  by-laws  of  the  corporation.  The  inspectoi-s 
of  the  first  election  of  directors  shall  be  appointed  by  the 
board  of  directors  named  in  the  articles  of  association. 
No  person  shall  be  a  director  or  president  unless  he  shall 
be  a  stockholder  owning  stock  absolutely  in  his  own  right 
and  qualified  to  vote  for  directors  at  the  election  at  which 
he  shall  be  chosen;  and  at  every  election  of  directors  the 
books  and  papers  of  such  company  shall  be  exhibited  to 
the  meeting  if  a  majority  of  the  stockholders  present 
shall  require  it.  And  whenever  the  purchaser  or  pur- 
chasers of  real  estate,  track  and  fixtures  of  any  railroad 
corporation  which  has  heretofore  been  sold  or  may  be 
hereafter  sold  by  virtue  of  any  mortgage  executed  by 
such  corporation  or  execution  issued  upon  any  judgment 
or  decree  of  any  court  shall  acquire  title  to  the  same  in 
the  manner  prescribed  by  law,  such  purchaser  or  pur- 
chasers may  associate  with  him  and  them  any  number  of 
persons,  and  make  and  acknowledge  and  file  articles  of 
association  as  prescribed  in  this  chapter;  such  purchaser 
or  purchasers  and  their  associates  shall  thereupon  be  a 
new  corporation  with  all  the  powers,  j^rivileges  and 
franchises,  and  be  subject  to  all  the  pi'ovisions  of  this 
chapter. 

Eliason  v.  Coleman,  86—235. 


Chap.  49.]       EAILROAD  COMPANIES.  T37 

Sec.  1937.  Officers  appointed  bj  the  president,  &c.  1871- 
'2,  c.  138,  s.  6. 

The  president  and  directors  shall  appoint  a  treasurer 
and  secretary  and  such  other  officers  and  agents  as  shall 
be  prescribed  by  the  by-laws. 

Sec.  1938.  Payment  by  instalments;  stock  forfeited. 
1871-'2,  c.  138,  s.  7. 

The  directors  may  require  the  subscribers  to  the  capital 
stock  of  the  company  to  pay  the  amount  by  them  res- 
pectively subscribed  in  such  manner  and  in  such  instal- 
ments as  they  may  deem  proper.  If  any  stockholder 
shall  neglect  to  pay  any  instalment  as  required  by  a  res- 
olution of  the  board  of  directors,  the  said  board  shall  be 
authorized  to  declare  his  stock  and  aU  previous  payments 
thereon  forfeited  for  the  use  of  the  company,  but  they 
shall  not  declare  it  so  forfeited  until  they  shall  have 
caused  a  notice  in  writing  to  be  served  on  him  personally, 
or  by  depositing  the  same  in  the  post-office,  properly  direct- 
to  him  at  the  post  office  nearest  his  usual  place  of  resi- 
dence, stating  that  he  is  required  to  make  such  payment 
at  the  time  and  place  specified  in  said  notice,  and  that  if 
he  fails  to  make  the  same,  his  stock  and  all  previous 
payments  thereon  will  be  forfeited  for  the  use  of  the 
company,  which  notice  shall  be  served  as  aforesaid  at 
least  sixty  days  previous  to  the  day  on  which  payment  is 
required  to  be  made. 

Sec.  1939.  Insufficiency  of  stock  to  be  increased ;  meeting 
of  stockholders;  time,  place  and  object  of  meeting  to 
be  publicly  notified.    1871-'2,  c.  138,  s.  9. 

In  case  the  capital  stock  of  any  railroad  company  is 
found  to  be  insufficient  for  constructing  and  operatmg 
its  road,  such  company  may,  with  the  concurrence  of 
two-thirds  in  amount  of  all  its  stockholders,  increase  its 
capital  stock  from  time  to  time  to  any  amount  required 
for  the  purposes  aforesaid.  Such  increase  must  be 
sanctioned  by  a  vote  in  pereon  or  by  proxy  of  two-thn-ds 
in  amount  of  all  the  stockholders  of  the  company,  at  a 
meeting  of  such  stockholders  called  by  the  directors  of  the 
company  for  that  purpose,  by  a  notice  in  writing  to  each 
stockholder,  to  be  served  on  him  personally  or  by  depos- 
iting the  same,  properly  folded  and  directed  to  him,  at 
the  post-office  nearest  his  usual  place  of  residence,  in  the 
post-office  at  least  twenty  days  prior  to  such  meeting. 
Such  notice  must  state  the  time  and  place  of  the  meeting 
and  its  object  and  the  amount  to  which  it  is  proposed  to 


738  RAILROAD  COMPANIES.        [Chap.  49. 

increase  the  capital  stock.  The  proceedings  of  such 
meeting  must  be  entered  on  the  minutes  of  the  proceed- 
ings of  the  company,  and  thereupon  the  capital  stock  of 
the  company  may  be  increased  to  the  amount  sanctioned 
by  a  vote  of  two-thirds  in  amount  of  all  the  stockholdei-s 
of  the  company  aforesaid. 

Sec.  1940.  Liabilities  of  stockholders  ;  execution  against 
stockbolders.  1871-'2,  c.  138,  s.  10. 

Each  stockholder  of  any  such  company  shall  be  indi- 
vidually liable  to  the  creditors  of  such  company  to  an 
amount  equal  to  the  amount  unpaid  on  the  stock  held 
by  him,  for  all  the  debts  and  liabilities  of  such  company 
until  the  whole  amount  of  the  capital  stock  so  held  by  him 
shall  have  been  paid  to  the  company,  and  all  the  stock- 
holders of  any  such  company  shall  be  jointly  and  sever- 
ally liable  for  the  debts  due  or  owmg  to  any  of  its 
laborers  and  servants,  other  than  contractors,  for  pereonal 
services  for  thirty  days'  service  performed  for  such  com- 
pany, but  shaU  not  be  liable  to  an  action  therefor  before 
an  execution  shall  be  returned  unsatisfied  in  whole 
or  in  part  against  the  corporation,  and  the  amount 
due  on  such  executions  shall  be  the  amount  recoverable 
with  costs  against  such  stockholders;  before  such  laborer 
or  servant  shall  charge  such  stockholder  for  such  thirty 
days'  services  he  shall  give  him  notice  in  writing  within 
twenty  days  after  the  performance  of  such  service  that 
he  intends  so  to  hold  him  liable  and  shall  commence  such 
actionthereforwithin  thirty  days  after  the  return  of  such 
execution  unsatisfied  as  above  mentioned;  and  every  such 
stockholder,  against  whom  any  such  recovery  by  such 
laborer  or  servant  shall  have  been  had,  shall  have  aright 
to  recover  the  same  of  the  other  stockholders  in  said  cor- 
poration in  ratable  proportion  to  the  amount  of  the  stock 
they  shall  respectively  hold  with  himself. 

Sec.  1941.  Stockholders  liable  for  their  wards.    1871-'2, 
c.  1.38,  s.  11. 

No  person  holding  stock  in  any  such  company  as  ex- 
ecutor, administrator,  guardian  or  trustee,  and  no  per- 
son holding  such  stock  as  collateral  security,  sball  be  per- 
sonally subject  to  any  liability  as  stockholders  of  such 
company;  but  the  person  pledging  such  stock  shall  be 
considered  as  holding  the  same,  and  shall  be  liable  as  a 
stockholder  accordingly;  and  the  estates  in  the  hands  of 
such  executor,  administrator,  guai-dian  or  trustee,  shall 
be  liable  in  like  manner  and  to  the  same  extent  as  the 


Chap.  49.]       EAILROAD  COMPANIES.  739 

testator  or  intestate  or  the  ward  or  person  interested  in 
such  trust  fund  would  have  been  if  he  had  been  Uving 
and  competent  to  act  and  hold  the  same  stock  in  his  own 
name. 

Sec.  1942.  Indebtedness  of  laborers,  how  collected;  time 
specified  for  action.    1871-'2,  c.  138,  s,  12. 

As  often  as  any  contractor  for  the  construction  of  any 
part  of  a  railroad  which  is  in  progress  of  construction 
shall  be  indebted  to  any  laborer  for  thirty  or  less  number 
of  days'  labor  performed  in  constnicting  said  road,  such 
laborer  may  give  notice  of  such  indebtedness  to  said  com- 
pany in  the  manner  herein  provided,  and  said  company 
shall  thereupon  become  liable  to  pay  such  laborer  the 
amount  so  due  him  for  such  labor,  and  an  action  may  be 
maintained  against  said  company  therefor.  Such  notice 
shall  be  given  by  said  laborer  to  said  company  within 
twenty  days  after  the  performance  of  the  number  of 
days'  labor  for  which  the  claim  is  made.  Such  notice 
shall  be  in  writing,  and  shall  state  the  amount  and  num- 
ber of  days'  labor,  and  the  time  when  the  labor  was  per- 
formed for  which  the  claim  is  made,  and  the  name  of  the 
contractor  from  whom  due,  and  shall  be  signed  by  such 
laborer,  or  his  attorney,  and  shall  be  served  on  an  engineer, 
agent  or  superintendent  employed  by  said  company  hav- 
ing charge  of  the  section  of  the  road  on  which  such  labor 
was  performed,  personally,  or  by  leaving  the  same  at  the 
office  or  usual  place  of  business  of  such  engineer,  agent 
or  superintendent,  with  some  person  of  suitable  age. 
But  no  action  shall  be  maintained  against  any  company 
under  the  provisions  of  this  section,  unless  the  same  is 
commenced  within  thirty  days  after  notice  is  given  to 
the  company  by  such  laborer  as  above  provided. 

Sec.  1943.  Right  to  acquire  title  to  real  estate.  1871-'2, 
c.  138,  s.  13. 

In  case  any  company  formed  under  this  chapter,  or  by 
special  act  of  the  general  assembly,  is  unable  to  agree 
for  the  purchase  of  any  real  estate  required  for  the  pur- 
poses of  its  incorporation,  it  shall  have  the  right  to  ac- 
quire title  to  the  same  in  the  manner  and  by  the  special 
proceedings  prescribed  in  this  chapter. 

Holloway  v.  R.  R.  Co.,  85—453. 

Sec.  1944.  Petition  presented;  character  of;  names  and 
places  of  residence  to  be  given  ;  copy  of  petition  must 
be  sent  to  superior  court.     1871-'2,  c.  138,  s.  14. 

For  the  purpose  of  acquiring  such  title  the  said  com- 


"ZdO  RAILROAD  COMPANIES.        [Chap.  49. 

pany,  or  the  owner  of  the  land  sought  to  be  condemned, 
may  present  a  petition  praying  for  the  appointment  of 
commissioners  of  appraisal  to  the  superior  court  of  the 
county  in  which  the  real  estate  described  in  the  petition 
is  situated.  Such  petition  shall  be  signed  and  verified 
according  to  the  rules  and  practice  of  such  court;  and  if 
filed  by  the  company,  it  must  contain  a  description  of 
the  real  estate  which  the  company  seeks  to  acquire;  and 
it  must,  in  effect,  state  that  the  company  is  duly  incor- 
porated, and  that  it  is  the  intention  of  the  company  in 
good  faith  to  construct  and  finish  a  railroad  from  and  to 
the  places  named  for  that  purpose  in  its  articles  of  associ- 
tion,  or  in  its  charter;  that  the  whole  capital  stock  of  the 
company  has  been  in  good  faith  subscribed,  as  required 
by  this  chapter,  or  by  the  terms  of  jts  charter;  that  the 
company  has  surveyed  the  line  or  route  of  its  proposed 
road,  and  made  a  map  or  survey  thereof,  by  which  such 
route  or  line  is  designated,  and  that  they  have  located 
their  said  road  according  to  such  survey,  and  filed  such 
certificates  of  such  location,  signed  by  a'  majority  of  the 
directors  of  the  company,  in  the  clerk's  office  of  the  several 
counties  through  or  into  which  the  said  road  is  to  be  con- 
structed; that  the  land  described  in  the  petition  is  required 
for  the  purpose  of  constructing  or  operating  the  proposed 
road;  and  that  the  company  has  not  been  able  to  acquire 
title  thereto,  and  the  reason  of  such  inability.  The  pe- 
tition, whether  filed  by  the  company  or  the  owner  of  the 
land,  must  also  state  the  names  and  places  of  residence 
of  the  parties,  so  far  as  the  same  can  by  reasonable  dih- 
gence  be  ascertained,  who  own  or  have,  or  claim  to  own 
or  have,  estates  or  interests  in  the  said  real  estate;  and  if 
any  such  persons  are  infants,  their  ages,  or  as  near  as 
rnay  be,  must  be  stated;  and  if  any  such  persons  are 
idiots  or  persons  of  unsound  mind  or  are  unknown,  that 
fact  must  be  stated,  together  with  such  other  allegations 
and  statements  of  liens  or  incumbrances  on  said  real 
estate  as  the  company  or  the  owner  may  see  fit  to  make. 
A  copy  of  such  petition,  with  a  notice  of  the  time  and 
place,  when  and  where,  the  same  shall  be  heard  by  the 
superior  court,  must  be  served  on  all  persons  whose  in- 
terests are  to  be  affected  by  the  proceedings,  at  least  ten 
days  prior  to  the  hearing  of  the  same  by  the  said  court. 

(1)  Persons  residing  in  this  state  must  have  service 
personally. 

If  the  person  on  whom  such  service  is  to  be  made 


Chap.  49.]       EAILEOAD  COMPANIES.  Y41 

resides  in  this  state,  and  is  not  an  infant,  idiot  or  person 
of  unsound  mind,  service  of  a  copy  of  such  petition  and 
notice  must  be  made  on  him  or  his  agent  or  attorney, 
authorized  to  contract  for  the  sale  of  the  real  estate 
described  in  the  petition,  personally  or  by  leaving  the 
same  at  the  usual  place  of  residence  of  the  person  on 
whom  service  must  be  made  as  aforesaid,  with  some  per- 
son of  suitable  age; 

(2)  Non-residents  having  agents,  public  notice  to  be 

GIVEN. 

If  the  person  on  whom  such  service  is  to  be  made 
resides  out  of  the  state,  and  has  an  agent  residing  in  this 
state,  authorized  to  contract  for  the  sale  of  the  real  estate 
described  in  the  petition,  such  service  may  be  made  on 
such  agent  or  on  such  person  personally,  out  of  the 
state,  or  it  may  be  made  by  pubhshing  the  notice,  stat- 
ing briefly  the  object  of  the  apphcation,  and  giving  a 
description  of  the  laud  to  be  taken,  in  a  paper,  if  there 
be  one,  printed  in  the  county,  in  which  the  land  to  be 
taken  is  situate,  once  in  each  week  for  one  month  next 
previous  to  the  presentation  of  the  petition,  and  if  there 
be  no  paper  printed  in  said  county,  then  in  some  paper 
pubhshed  in  the  city  of  Ealeigh.  And  if  the  residence  of 
such  person  residing  out  of  this  state,  but  in  any  of  the 
United  States  or  any  of  the  British  colonies  m  North 
America,  is  known,  or  can  by  reasonable  diligence  be  as- 
certained, the  company  must,  in  addition  to  such  publica- 
tion as  aforesaid,  deposit  a  copy  of  the  petition  and 
notice  in  the  post-oface,  properly  folded  and  directed  to 
such  person  at  the  post-office  nearest  his  place  of  resi- 
dence, at  least  thirty  days  before  presenting  such  petition 
to  the  court,  and  pay  the  postage  chargeable  thereon  in 
the  United  States; 

(3)  Guardians  notified  for  infants. 

If  any  person  on  whom  such  service  is  to  be  made  is 
under  the  age  of  twenty-one  years  and  resides  in  this 
state,  such  service  shall  be  made  as  aforesaid,  on  his 
general  guardian;  or  if  he  has  no  such  guardian,  then  on 
such  infant  personally,  if  he  is  over  the  age  of  fourteen 
years;  and  if  under  that  age  then  on  the  person  who  has 
the  care  of,  or  with  whom  such  infant  resides; 


EAILEOAD  COMPANIES.        [Chap.  49. 


(.4)  Respecting  idiots. 

If  the  person  on  whom  such  service  is  to  be  made  is  an 
idiot  or  of  unsound  mind,  and  resides  in  this  state,  such 
service  may  be  made  on  the  committee  of  his  person  or 
estate;  or  if  he  has  no  such  committee,  then  on  the  per- 
son who  has  the  care  and  charge  of  such  idiot  or  person 
of  unsound  mind; 


(5)  Parties  unknown  are  publicly  notified  by  papers 
IN  the  state. 

If  the  person  on  whom  such  service  is  to  be  made  is 
unknown,  or  his  residence  is  unknown  and  cannot  by 
reasonable  diligence  be  ascertained,  then  such  service 
may  be  made  under  the  direction  of  the  court,  by  pub- 
hshing  a  notice,  stating  the  time  and  place  the  petition 
will  be  presented,  the  object  thereof,  with  a  description 
of  the  land  to  be  affected  by  the  proceedings,  in  a  paper, 
if  there  be  one,  printed  in  the  county  where  the  land  is 
situate,  once  in  each  week  for  one  month  previous  to  the 
presentation  of  such  petition,  and  if  there  be  no  paper 
printed  in  said  county,  then  in  a  newspaper  printed  in 
the  city  of  Raleigh; 


(6)  Duty  of  court  to  appoint  guardian  fob  persons 
OF  unsound  mind;  security  required. 

In  case  any  party  to  be  affected  by  the  proceedings  is 
an  infant,  idiot,  or  of  unsound  mind,  and  has  no  general 
guardian  or  committee,  the  court  shall  appoint  a  special 
guardian  or  committee  to  attend  to  the  inteiests  of  such 
jjerson  in  tlie  proceedings,  but  if  a  general  guardian  or 
committee  has  been  appointed  for  such  person  in  this 
state,  it  shall  be  the  duty  of  such  general  guardian  or 
committee  to  attend  to  the  interests  of  such  infant,  idiot, 
or  person  of  unsound  mind,  and  the  court  may  require 
such  security  to  be  given  by  such  general  or  special  guar- 
dian or  committee  as  it  may  deem  necessary  to  protect 
the  rights  of  such  infant,  idiot,  or  person  of  unsound 
mind,  and  all  notices  requued  to  be  served  in  the  pro- 
gress of  the  proceedings  may  be  served  on  such  general 
or  special  guardian  or  committee; 


Chap.  49.]       RAILROAD  COMPANIES.  743 

(7)  Cases  not  provided  for,  must  be  directed  by  su- 
perior COURT. 

In  all  cases  not  herein  otherwise  provided  for,  services 
of  orders,  notices,  and  other  papers  m  the  special  pro- 
ceedings kuthorized  by  this  chapter  may  be  made  as  the 
superior  court  shall  direct. 

Mclnlyre  v.  K.  R.  Co.,  67-278. 

Sec.    1945.    Allegations    made    against    Petition;    free- 
lioltlers  appointed  to  appraise  estate.    187 1-  -,  c.  i^». 

On  presenting  such  petition  to  the  superior  court  as 
aforesaid,  with  proof  of  service  of  a  copy  thereof,  and 
notice  as  aforesaid,  all  or  any  of  the  persons  whose  es- 
tates or  interests  are  to  be  affected  by  the  proceedmgs, 
may  answer  such  petition  and  show  cause  agamst  grant- 
ing; the  prayer  of  the  same,  and  may  disprove  any  of  the 
fatts  alleged  in  it.  The  court  shall  hear  the  proofs  and 
allegations  of  the  parties,  and  if  no  sufficient  cause  is 
shown  against  granting  the  prayer  of  the  petition,  it 
shall  make  an  order  for  the  appointment  of  three  disin- 
terested and  competent  freeholders  who  reside  m  the 
county  where  the  premises  are  to  be  appraised,  tor  the 
purposes  of  the  company,  and  shall  fix  the  time  and 
place  for  the  first  meeting  of  the  commissioners. 

B.  R.  Co.  V.  Wicker,  74—320;  Holloway  v.  R.  R.  Co.,  85—452. 

Sec   1946,  Commissioners  to  be  qualified  to  issue  subpoe- 
nas, administer  oatbs,  to  atljouin,  to  appraise  and  report 
under  bands  and  seals;  either  side  may  file  exceptions 
before  clerk;    may   appeal;     upon    payment  of    sum 
appraised,  company  to  enter  and  take  possession  dur- 
ing appeal ;  final  judgment ;  court  to  have  power  to  m- 
force  judgment;  land  to  belong  to  company  during  its 
corporate  existence ;  posses.sion  of  land  not  condemned 
to  be  surrendered  to  owner,  &c.;  costs  at  the  discretion 
of  judge  or  court.     lS71-'2,  c.  138,  ss.  16,  17,  18. 
The  commissioners,  before  entermg  upon  the  discharge 
of  their  duties  shall  take  and  subscribe  an  oath  that  they 
will  fairly  and  impartially  appraise  the  lands  mentioned 
in  the  petition.     Any  one  of  them  may  issue  subpoenas, 
administer  oaths  to  witnesses,  and  any  two  ot  them  may 
adiourn  the  proceedings  before  them  from  time  to  time, 
in  their  discretion.     Whenever  they  meet  except  by  the 
appointment  of  the  com-t  or  pursuant  to  adjournment, 


1U  EAILROAD  COMPANIES.        [Chap.  49. 

they  shall  cause  ten  days'  notice  of  such  meeting  to  be 
given  to  the  parties  who  are  to  be  affected  by  their  pro- 
ceedings, or  their  attorney  or  agent.  They  shall  view 
the  premises  described  in  the  petition,  and  hear  the  proofs 
and  allegations  of  the  parties,  and  reduce  the  testimony, 
if  any  is  taken  by  them,  to  writing;  and  after  the  testi- 
mony is  closed  in  each  case,  and  without  any  unnecessary 
delay,  and  before  proceeding  to  the  examination  of  any 
other  claim,  a  majority  of  them  all  being  present  and 
acting,  shall  ascertain  and  determine  the  compensation 
w^hich  ought  justly  to  be  made  by  the  company  to  the 
party  or  parties  owning  or  interested  in  the  real  estate 
appraised  by  them;  and  in  determining  the  amount  of 
such  compensation  they  shall  not  make  an  allowance  or 
deduction  on  account  of  any  real  or  supposed  benefits 
which  the  parties  in  interest  may  derive  from  the  con- 
struction of  the  proposed  railroad.  They  shall  report  the 
same  to  the  court  under  their  hands  and  seals,  and  with- 
in twenty  days  after  filing  the  same  any  person  interested 
in  the  said  land  may  file  exceptions  to  said  report,  and 
upon  the  determination  of  the  same  by  the  court,  either 
party  to  the  proceedings  may  appeal  to  the  court  at  term, 
and  thence,  after  judgment,  to  the  supreme  court.  The 
court  or  judge  on  the  hearing  may  direct  a  new  apprais- 
al, modify  or  confirm  the  report,  or  make  such  order  in 
the  premises  as  to  him  shall  seem  right  and  proper.  If 
the  said  company,  at  the  time  of  the  appraisal,  shaD  pay 
into  court  the  sum  appraised  by  the  commissionei-s,  then 
and  in  that  event  the  said  company  may  enter,  take  pos- 
session of,  and  hold  said  lands,  notwithstanding  the  pen- 
dency of  the  appeals,  and  until  the  final  judgment  ren- 
dered on  said  appeal  or  appeals.  And  if  there  shall  be  no 
appeal,  or  if  the  final  judgment  rendei-ed  upon  said  peti- 
tion and  proceedings,  shall  be  in  favor  of  the  company, 
and  upon  the  payment,  by  said  company  of  the  sum  ad- 
judged, together  with  the  costs  and  counsel  fees  allowed 
by  the  courts  into  the  office  of  the  clerk  of  the  superior 
court,  then  and  in  that  event,  all  persons  who  have  been 
made  parties  to  the  proceedings  shall  be  divested  and 
barred  of  all  right,  estate  and  interest  in  such  real  estate 
during  the  corporate  existence  of  the  company  aforesaid. 
A  certified  copy  of  said  judgment  under  the  seal  of  the 
court  shall  be  registered  in  the  county  where  the  land  is 
situate,  and  a  copy  of  the  same,  or  the  original  certified, 
may  be  given  in  evidence  in  all  actions  and  proceedings, 
as  deeds  for  land  are  now  allowed  to  be  read  in  evidence. 
All  real  estate  acquired  by  any  company  under  and  pur- 


Chap.  49.]       EAILROAD  COMPANIES.  745 

suant  to  the  provisions  of  this  chapter,  for  the  purpose  of 
its  incorporation,  shall  be  deemed  to  be  acquired  for  the 
public  use.  But  if  the  court  shall  refuse  to  condemn  the 
land,  or  any  portion  thereof,  to  the  use  of  said  company, 
then,  and  in  that  event,  the  money  paid  into  court,  or  so 
much  thereof  as  shall  be  adjudged,  shall  be  refunded  to 
said  com  pan  V.  And  the  company  shall  have  no  right  to 
hold  said  laiid  not  condemned,  but  shall  surrender  the 
possession  of  the  same  on  demand,  to  the  owner  or  own- 
ers, or  his  or  their  agent  or  attorney.  And  the  court  or 
judge  shall  have  full  power  and  authority  to  make  such 
orders,  judgments  and  decrees,  and  issue  such  executions 
and  other  process  as  inay  be  necessary  to  carry  into  effect 
the  final  judgment  rendered  in  such  proceedings.  The 
costs  in  this  proceeding  shall  be  paid  by  either  party  as 
the  judge  or  court  in  its  discretion  shall  adjudge.  The 
commissioners  shall  each  be  entitled  to  three  dollars  per 
day  for  each  day  they  are  engaged  in  the  performance  of 
their  duties,  and  the  same  shall  be  tased  in  the  bill  of 
costs. 

Plott  V.  R.  R.  Co.,65— 74;  R.  R.  Co.  v.  Wicker,  74—330;  R.  R.  Co.  v. 
Phillips,  78—49;  Telegraph  Co.  v.  R.  R.  Co..  83—430;  R.  R.  Co.  v.  R.  R. 
Co.,  83—498;  HoUoway  v.  R.  R.  Co.,  85—453;  Com'rs  v.  Cook,  86—18. 

Sec.  1947.  Court  may  adjudge  rights  of  conflicting  claim- 
ants.    1871-'2,  c.  138,  s.  19. 

If  there  are  adverse  and  conflicting  claimants  to  the 
money,  or  any  part  of  it,  to  be  paid  as  compensation  for 
the  real  estate  taken,  the  court  may  direct  the  money  to 
be  paid  into  the  said  court  by  the  company,  and  may  de- 
termine who  is  entitled  to  the  same  and  direct  to  whom 
the  same  shall  be  paid,  and  may  in  its  discretion  order  a 
reference  to  ascertain  the  facts  on  which  such  determina- 
tion and  order  are  to  be  made. 

Sec.  1948.  Attorney  appointed  by  court  to  protect  the 
rights  of  parties  unknown  or  non-residents.  187 1-'3, 
c.  138,  s.  30. 

The  court  shall  appoint  some  competent  attorney  to 
appear  for  and  protect  the  rights  of  any  party  in  interet^t 
who  is  unknown  or  whose  residence  is  unknown,  and 
who  has  not  appeared  in  the  proceedings  by  an  attorney 
or  agent,  and  shall  make  an  allowance  to  said  attorney 
for  his  services,  which  shall  be  taxed  in  the  bill  of  costs. 
The  court  shall  also  have  power  at  any  time  to  amend 
any  defect  or  informality  in  any  of  the  special  proceed- 
ings authorized  by  this  chapter  as  may  be  necessary,  or 


T46  EAILROAD  COMPANIES.        [Chap.  49. 

to  cause  new  parties  to  be  added  and  to  direct  such  fur- 
ther notices  to  be  given  to  any  party  in  interest  as  it 
deems  proper;  and  also  to  appoint  other  commissioners 
in  place  of  any  who  shall  die,  refuse,  neglect  to  serve  or 
be  incapable  of  serving. 

Sec.  1949.  Court  must  take  cognizance  of  all  proceed- 
ings not  provided  for  in  this  chapter.  1871-'2,  c.  138, 
s.  21. 

In  all  cases  of  appraisal  under  this  chapter  where  the 
mode  or  manner  of  conducting  all  or  any  of  the  pro- 
ceedings to  the  appraisal  and  the  proceedings  consequent 
thereon  ai-e  not  expressly  provided  for  by  the  statute,  the 
courts  before  whom  such  proceedings  may  be  pending 
shall  have  the  power  to  make  all  the  necessary  orders 
and  give  the  proper  directions  to  carry  into  effect  the  ob- 
ject and  intent  of  this  chapter,  and  the  practice  in  such 
cases  shall  conform  as  near  as  may  be  to  the  ordinary 
practice  in  such  courts. 

Sec.  1950,  Change  of  ownership  not  to  affect  appraisal. 
1871-'3,  c.  138,  S.32. 

When  any  proceedings  of  appraisal  shall  have  been 
commenced,  no  change  of  ownership  by  voluntary  con- 
veyance or  transfer  of  the  real  estate  or  any  inteiest 
therein  or  of  the  subject  matter  of  the  appraisal,  shall 
in  any  manner  affect  such  proceedings,  but  the  same 
may  be  carried  on  and  perfected  as  if  no  such  convey- 
ance or  transfer  had  been  made  or  attempted  to  be  made. 

Sec.  1951.  Defective  title,  how  remedied.  1871-'2,  c. 
138,  s.  23. 

If  at  any  time  after  an  attempt  to  acquire  title  by  ap- 
praisal of  damages  or  otherwise,  it  shall  be  found  that 
the  title  thereby  attempted  to  be  acquired  is  defective, 
the  company" may  proceed  anew  to  acquire  or  perfect 
such  title  in  the  same  manner  as  if  no  appraisal  had  been 
made,  and  at  any  stage  of  such  new  proceedings  the 
court  may  authorize  the  corporation,  if  in  possession,  to 
continue  in  possession,  and  if  not  in  possession,  to  take 
possession  and  use  such  real  estate  during  the  pendency, 
and  until  the  final  conclusion  of  such  new  proceedings, 
and  may  stay  aU  actions  or  proceedings  against  the  com- 
pany on  account  thereof,  on  such  company  paying  into 
court  a  sufficient  sum  or  giving  security  as  the  court  may 
direct  to  pay  the  compensation  therefor  when  finally  as- 
certained, and  iu  every  such  case  the  party  interested  in 


Chap.  49.]       EAILROAD  COMPANIES.  747 

such  real  estate  may  conduct  the  proceedings  to  a  con- 
clusion if  the  company  delays  or  omits  to  prosecute  the 
same. 

Sec.  1952.  Maps  of  route  to  be  made;  notice  given  to  oc- 
cupants of  laud;  superior  court  petitioned  wlien  route 
is  objectionable;  no  alteration  of  route  allowable,  un- 
less, &c.;  time  of  certificate;  compensation.  1871-'2, 
c.  138,  s.  24. 
Every  company,  before  constructing  any  part  of  their 
road  into  or  through  any  county  named  in  their  articles 
of  association  or  charter,  shall  make  a  map  and  pi'ofile  of 
the  route  intended  to  be  adopted  by  such  company  in 
such  county,  which  shall  be  certified  by  the  president  and 
engineer  of  the  company  or  a  majority  of  the  directors 
and  filed  in  the  office  of  the  clerk  of  each  county  through 
which  the  road  is  to  be  made.  The  company  shall  give  a 
written  notice  to  all  actual  occupants  of  the  land  over 
which  the  route  of  the  road  is  so  designated  and  which 
has  not  been  purchased  by  or  given  to  the  company  of 
the  route  so  designated.  Any  party  feeling  aggrieved  by 
the  proposed  location  may,  within  fifteen  daj-s  after  re- 
ceiving notice  as  aforesaid,  apply  to  the  superior  court  by 
petition  duly  verified,  setting  forth  his  objections  to  the 
route  designated,  and  the  said  court  may,  if  it  considers 
sufficient  cause  therefor  to  exist,  appoint  three  disinter- 
ested persons,  one  of  whom  must  be  a  practical  engineer, 
commissioners  to  examine  the  proposed  route,  and  after 
hearing  the  parties,  to  affirm  or  alter  the  same  as  may 
be  consistent  with  the  just  rights  of  all  parties  and  the 
public,  but  no  alteration  of  the  route  shall  be  made  ex- 
cept by  the  concurrence  of  the  commissioner  who  is  a 
practical  civil  engineer.  The  determination  of  the  com- 
missioners shall  within  thirty  days  after  their  appoint- 
ment be  made  and  certified  by  them  and  the  certificate 
filed  in  the  office  of  the  county  clerk.  Said  commission- 
ers shall  each  be  entitled  to  three  dollars  per  day  for  their 
expenses  and  services,  to  be  paid  by  the  person  who  ap- 
plied for  their  appointment,  and  if  the  proposed  route  of 
the  load  is  altered  or  changed  by  the  commissioners,  the 
company  shall  refund  to  the  applicant  the  amount  so  paid. 

Sec.  1953.  Discretionary  with  directors  to  change  route 
of  railroad  for  its  improvement;  certificate  of  altera- 
tion to  be  filed  in  clerk's  office;  no  change  made  in  city, 
unless  sanctioned  by  majority  of  corporators  thereof; 
compensation  for  lands.  1871-'2,  c.  138,  s.  25. 
The  directors  of  every  company  may  by  a  vote  of  two- 


748  RAILROAD  COMPANIES.        [Chap.  49. 

thirds  of  their  whole  number  at  anytime  alter  or  change 
the  route  or  any  part  of  the  route  of  their  road  if  it  shall 
appear  to  them  that  the  line  can  be  improved  thereby; 
and  they  shall  make  and  file  in  the  clerk's  office  of  the 
proper  county  a  survey,  map  and  certificate  of  such  alter- 
ation or  change;  and  shall  have  the  same  right  and 
power  to  acquire  title  to  any  lands  required  for  the  pur- 
poses of  the  company  in  such  altered  or  changed  route, 
as  if  the  road  had  been  located  there  in  the  first  instance; 
and  no  such  alteration  shall  be  made  in  any  city  or  vil- 
lage after  the  road  shall  have  been  constructed,  unless 
the  same  is  sanctioned  by  a  vote  of  two-thirds  of  the  cor- 
porate authorities  of  said  city  or  trustees  of  said  village  ; 
and  in  case  of  any  alteration  made  in  the  route  of  any 
railroad  after  the  company  has  commenced  grading,  com- 
pensation shall  be  made  to  all  persons  for  injury  so  done 
to  any  lands  that  may  have  been  donated  to  the  com- 
pany." All  the  provisions  of  this  chapter  relative  to  the 
first  location  and  to  acquiring  title  to  land  shall  apply  to 
every  such  new  or  altered  portion  of  the  route. 

N.  C.  R.  R.  V.  R.  R.  Co.,  83—489. 


Sec.  1954.  Highways,  turnpikes,  &c.,  to  prove  no  obstruc- 
tion to  railroads.    187 1-'2,  c.  138,  s.  26. 

Whenever  the  track  of  a  railroad  constructed  by  a  com- 
pany shall  cross  a  railroad,  a  highway,  turnpike  or  plank- 
road,  such  highway,  tui'upike  or  plaukroad  may  be  car- 
ried under  or  over  the  track  as  may  be  found  most 
expedient;  and  in  cases  where  an  embankment  or  cutting 
shall  make  a  change  in  the  line  of  such  highway,  turn- 
pike or  plankroad  desirable,  with  a  view  to  a  more  easy- 
ascent  or  descent,  the  said  company  may  take  such  addi- 
tional lands  for  the  construction  of  such  road,  highway, 
turnpike  or  plankroad  on  such  new  line  as  may  be  deem- 
ed requisite  by  the  directors.  Unless  the  lands  so  taken 
shall  be  purchased  for  the  purposes  aforesaid,  compensa- 
tion therefor  shall  be  ascertained  in  the  manner  prescrib- 
ed in  this  chapter  for  acquiring  title  to  real  estate,  and 
duly  made  by  said  corporation  to  the  owners  and  pereons 
interested  in  such  land.  The  same  when  so  taken  shall 
become  a  part  of  such  intersecting  highway,  turnpike  or 
plankroad  in  such  manner  and  by  such  tenure  as  the  ad- 
jacent parts  of  the  same  highway,  turnpike  or  plankroad 
may  be  held  for  highway  purposes. 


Chap.  49.]       RAILROAD  COMPANIES.  749 

Sec.  1955.  Power  of  secretary  of  state  and  town  authori- 
ties in  certain  cases  to  grant  land.  1871-'2,  c.  138,  s. 
27. 

The  secretary  of  state  shall  have  power  to  grant  to  any 
railroad  company,  any  land  belonging  to  the  people  of 
this  state  which  may  be  required  for  the  purposes  of  their 
road,  on  such  terms  as  may  be  agreed  on  by  them,  or 
such  company  may  acquire  title  thereto  by  appraisal,  as 
in  the  case  of  lands  owned  by  individuals;  and  if  any 
land  belonging  to  a  county  or  town  is  required  by  any 
company  for  the  purposes  of  the  road,  the  county  or 
town  officers  having  the  charge  of  such  land  may  grant 
such  land  to  such  company  for  such  compensation  as 
may  be  agreed  upon. 

Sec.  1956.  Superior  court  empowered  to  autliorize  guar- 
dians to  sell  land  of  insane  persons  for  corporate  pur- 
poses; court  may  appoint  special  guardian;  terms  of 
sale,  &c.,  reported  to  court.    1871-'2,  c.  138,  s.  28. 

In  case  any  title  or  interest  in  real  estate  acquired  by 
any  company  for  the  purpose  of  its  corporation,  shall  be 
vested  in  any  trustee  not  authorized  to  sell,  release,  and 
convey  the  same,  or  in  any  infant,  idiot  or  person  of  un- 
sound mind,  the  superior  court  shall  have  power,  by  a 
special  proceeding,  on  petition,  to  authorize  and  empower 
such  trustee  or  the  general  guardian  or  committee  of 
such  infant,  idiot,  or  person  of  unsound  mind,  to  sell  and 
convey  the  same  to  such  company  for  the  purpose  of  its 
incorporation,  on  such  terms  as  may  be  just;  and  in  case 
any  such  infant,  idiot  or  person  of  unsound  mind  has  no 
general  guardian  or  committee,  the  said  court  may  ap- 
point a  special  guardian  or  committee  for  the  purpose  of 
making  such  sale,  release  or  conveyance,  and  may  require 
such  security  from  such  general  or  special  guardian  or 
committee  as  said  coui't  may  deem  proper.  But  before 
any  conveyance  or  release  authorized  by  this  section  shall 
be  executed,  the  terms  on  which  the  same  is  to  be  exe- 
cuted shall  be  reported  to  the  court  on  oath ;  and  if  the 
court  is  satisfied  that  such  terms  are  just  to  the  party  in- 
terested in  such  real  estate,  the  court  shall  confirm  the 
report  and  dii'ect  the  proper  conveyance  or  release  to  be 
executed,  which  shall  have  the  same  effect  as  if  executed 
by  an  owner  of  said  land,  having  legal  power  to  sell  and 
convey  the  same. 

Sec.  1957.  Corporate  powers.    1871-'2,  c.  138,  s.  29. 

Every  railroad  corporation  shall  have  power: 


750  KAILROAD  COMPANIES.       [Chap.  49. 

(1)  To  CAUSE  SURVEY,  &C. 

To  cause  such  examination  and  surveys  for  its  proposed 
railroad  to  be  made  as  may  be  necessary  to  the  selection 
of  the  most  advantageous  route;  and  for  such  purpose, 
by  its  officers  or  agents  and  servants,  to  enter  upon  the 
lands  or  waters  of  any  person,  but  subject  to  responsibility 
for  all  damages  which  shall  be  done  thereto; 

(2)  Voluntary  grants. 

To  take  and  hold  such  voluntary  grants  of  real  estate 
and  other  property  as  shall  be  made  to  it  to  aid  in  the 
construction,  maintenance  and  accommodation  of  its  rail- 
road; but  the  real  estate  received  by  voluntary  grant 
■  shall  be  held  and  used  for  the  pm-poses  of  such  grant 
only; 

(3)  Holding  property. 

To  purchase,  hold  and  use  all  such  real  estate  and  other 
property  as  may  be  necessary  for  the  construction  and 
maintenance  of  its  railroad  and  the  station  and  other  ac- 
commodations necessary  to  accomphsh  the  object  of  its 
incorporation; 

(4)  Grade  op  road. 

To  lay  out  its  road  not  exceeding  one  hundred  feet  in 
width,  and  to  construct  the  same,  and  for  the  purpose  of 
cuttings  and  embankments  to  take  as  much  more  land  as 
may  be  necessary  for  the  proper  construction  and 
security  of  the  road,  and  to  cut  down  any  standing  trees 
that  may  be  in  danger  of  falling  on  the  road,  making 
compensation  therefor  as  provided  in  this  chapter  for 
lands  taken  for  the  use  of  the  company; 

(5)  Obstructions  not  allowable. 

To  construct  their  road  across,  along,  or  upon  any 
stream  of  water,  watercourse,  street,  highway,  plank 
road,  tui-npike  or  canal  which  the  route  of  its  road  shall 
intersect  or  touch,  but  the  company  shall  restore  the 
stream  or  water-course,  street,  highway,  plank  road  and 
turnpike  road  thus  intersected  or  touched,  to  its  former 
state  or  to  such  state  as  not  unnecessarily  to  have  impaired 
its  usefulness.     Nothing  in  this  chapter  contained  shall  be 


Chap.  49.]       RAILROAD  COMPANIES.  751 

construed  to  authorize  the  erection  of  any  bridge  or  any 
other  obstructions  across,  in,  or  over  any  stream  or  lake 
navigated  by  steam  or  sail-boats,  at  the  place  where  any 
bridge,  or  other  obstructions  may  be  proposed  to  be  placed, 
nor  to  authorize  the  construction  of  any  railroad  not 
already  located  in,  upon,  or  across  any  streets  in  any  city 
without  the  assent  of  the  corporation  of  such  city; 

(6)  Crossing,  intersecting,  &c.  ,  of  railroads. 

To  cross,  intersect,  join  and  unite  its  railroad  with  any 
other  railroad  before  constructed,  at  any  point  on  its 
route,  and  upon  the  grounds  of  such  other  company, 
with  the  necessary  turnouts,  sidings  and  switches  and 
other  conveniences  in  furthei'ance  of  the  object  of  its 
connections.  And  every  company  whose  railroad  is  or 
shall  be  hereafter  intersected  by  any  new  railroad  shall 
unite  with  the  owners  of  such  new  railroad  in  forming 
such  intersections  and  connections  and  grant  the  facilities 
aforesaid,  and  if  the  two  corporations  cannot  agree  upoii 
the  amount  of  compensation  to  be  made  therefor,  or  the 
points  and  manner  of  such  crossings  and  connections,  the 
same  shall  be  ascertained  and  determined  by  com- 
missioners to  be  appointed  by  the  court  as  is  provided 
in  this  chapter  in  respect  to  acquiring  title  to  real 
estate; 

(Y)  Right  to  carry  persons  and  property. 

To  take  and  convey  persons  and  property  on  their 
railroad  by  the  power  or  force  of  steam  or  animals,  or 
by  any  mechanical  power,  and  to  receive  compensation 
therefor; 

(8)  Erection  of  necessary  buildings. 

To  erect  and  maintain  all  necessary  and  convenient 
buildings,  stations,  fixtures  and  machinery  for  the  ac- 
commodation and  use  of  their  passengers,  freight  and 
business; 

(9)  Regulation  op  time  and  manner  of  transporta- 
tion. 

To  regulate  the  time  and  manner  in  which  passengers 
and  property  shall  be  transported  and  the  compensation 
to  be  paid  therefor;  and  such  compensation  for  any  pas- 


752  RAILROAD  COMPANIES.        [Chap  49. 

senger  and  his  ordinaiy  baggage  shall  not  exceed  five 
cents  per  mile; 

(10)  Manner  of  raising  funds. 

From  time  to  time  to  borrow  such  sums  of  money  as 
may  be  necessary  for  completing  and  finishing  or  oper- 
ating their  railroad,  and  to  issue  and  dispose  of  their 
bonds  for  any  amount  so  borrowed,  and  to  mortgage 
their  corporate  property  and  franchises  to  secure  the 
payment  of  any  debt  contracted  by  the  company  for  the 
purposes  aforesaid,  and  the  directors  of  the  company 
may  confer  on  any  holder  of  any  bond  issued  for  money 
borrowed,  as  aforesaid,  the  right  to  convert  the  principal 
due  or  owing  thereon  into  stock  of  said  company  at  any 
time  not  exceeding  ten  years  from  the  date  of  the  bond, 
under  such  regulations  as  the  directors  may  see  fit  to 
adopt. 

Com'rs  V.  R.  R.  Co.,  77—289. 

Sec.  1958.  Kailroad  servants  to  wear  a  badge.  1871-'2, 
c.  138,  s.  30. 

Every  conductor,  baggage  master,  engineer,  brake- 
man,  or  other  servant  of  any  railroad  coi-poration  em- 
ployed in  a  passenger  train,  or  at  stations  for  passengers, 
shall  wear  upon  his  hat  or  cap  a  badge  which  shall  indi- 
cate his  office  and  the  initial  letters  of  the  title  of  the  cor- 
poration by  which  he  is  employed.  No  conductor  or  col- 
lector without  such  badge  shall  be  entitled  to  demand  or 
receive  from  any  passenger  any  fare  or  ticket,  or  to  ex- 
ercise any  of  the  powers  of  his  office;  and  no  officer  or 
servant  without  such  badge  shall  have  authority  to 
meddle  or  interfere  with  any  passenger,  his  baggage 
or  property. 

Sec.  1959.  Annual  report  to  be  made,  verified  and  filed 
in  the  secretary  of  state's  office;  statements  to  be 
made.    1871-'2,  c.  138,  s.  31. 

Every  railroad  corporation  shall  make  an  annual  report 
to  the  governor  of  the  operations  of  the  year  ending  on 
the  thirtieth  day  of  September,  which  report  shall  be 
verified  by  the  oaths  of  the  treasurer  or  president  and 
acting  superintendent  and  be  filed  in  the  office  of  the 
secretary  of  state  by  the  fifteenth  day  of  November  in 
each  year,  and  shall  state — 

(1)  The  amount  of  capital  as  by  charter; 


Chap.  49.]        EAILROAD  COMPANIES.  753 

(2)  The  amount  of  stock  subscribed; 

(3)  The  total  amount  of  capital  stock  paid  in; 

(4)  The  total  amount  of  funded  debt; 

(5)  The  amount  of  floating  debt; 

(6)  The  average  rate  per  annum  of  interest  on  funded 
debt. 

Cost  op  Road  and  Equipment. 

(7)  The  total  amount  expended  for  graduation  and 
masonry; 

(8)  The  total  amount  expended  for  bridges; 

(9)  The  total  amount  expended  for  superstructure,  in- 
cluding iron; 

(10)  The  total  amount  expended  for  passenger  and 
freight  stations,  building  and  fixtures; 

(11)  The   total  amount  expended  for  engine  and  car 
houses,  machine  shops,  machinery  and  fixtures; 

(12)  The  total  amount  expended  for  land,  damages  and 
fences; 

(13)  The  total  amount  expended  for  locomotives,  fix- 
tures and  plows; 

(14)  The  total  amount  expended  for  passenger  and  bag- 
gage cars; 

(15)  The  total  amount  expended  for  freight  cars; 

(16)  The  total  amount  expended  for  engineering  and 
agencies; 

(17)  The  total  cost  of  road  and  equipment. 

Characteristics  of  Road. 

(18)  Length  of  road  and  track  laid; 

(19)  Length  of  branches  owned  by  the  company,  laid; 

(20)  Weight  of  rail  by  yard,  on  main  track; 

(21)  The  number  of  engine-houses  and  shops,  of  engines 
and  cars,  and  their  character. 


Doings  of  the  year  in  transportation  and  total 
number  of  miles  run. 

(22)  Miles  rim  by  passenger  and  freight  trains,  exclu- 
sively; 

(23)  The  number  of  miles,  rate  of  fare,  and  number  of 
miles  traveled  charged  for  the  respective  classes  per  mile; 

(24)  Number  of  tons  of  freight  and  miles  carried; 

(25)  Average  rate  of  speed  adopted  by  ordinary  pass- 
enger trains,  including  stops; 


754  RAILROAD  COMPANIES.       [Chap.  49. 

(26)  Average  rate  of  speed  adopted  by  freight  trains, 
including  stops; 

(27)  Average  weight  in  tons,  of  tvfo  thousand  pounds, 
of  passenger  trains,  exclusive  of  passengers  and  baggage; 

(28)  Average  weight  in  tons  of  freight  trains,  exclusive 
of  freight; 

(29)  The  amount  of  freight,  specifying  the  quantity  in 
tons,  of  the  products  of  the  forest,  of  animals,  of  veget- 
able food,  other  agricultural  products,  manufactures, 
merchandise  and  other  articles; 

Expenses  of  maintaining  the  road  or  real  estate  of 

THE  corporation. 

(30)  For  repairs  of  roadbed  and  railway,  excepting 
cost  of  iron,  which  shall  be  the  cost  of  labor  and  mate- 
rials used  during  the  year,  also  use  and  cost  of  engines 
engaged  in  ballasting,  also  the  renewal  and  repairs  of 
gravel  and  stone  cars  and  all  items  of  cost  connected 
with  keeping  the  road  in  order; 

(31)  For  depreciation  of  way; 

(32)  Length,  in  feet,  of  iron  used  in  renewals,  with 
weight  and  cost; 

(33)  Repairs  of  buildings,  fences  and  gates; 

(34)  Taxes  on  real  estate; 

(35)  Expenses,  repairs  and  depreciation  of  machinery 
and  personal  property  itemized; 

(36)  Incidental  expenses,  including  fuel,  oil,  clerks, 
agents,  watchmen  and  stationery; 

(37)  Expense  of  employees; 

(38)  Loss  and  damage  of  goods  and  baggage; 

(39)  Damages  for  injuries  to  persons  and  property,  in- 
cluding damages  by  lire  and  cattle  killed; 

(40)  Contingencies; 

(41)  Total  expenses  of  operating  road; 

(42)  The  above  statements  are  to  be  made  without  ref- 
erence to  the  sums  actually  received  or  paid  during  the 
year. 

The  following  statement  of  the  earnings  and  cash  re- 
ceipts and  payments  are  required : 

(43)  From  passengers,  freight  and  other  sources,  to  be 
stated  without  reference  to  the  amount  actually  collected; 

(44)  Receipts  during  the  year  from  freight,  passengers 
and  other  sources; 

(45)  Payment  for  transportation  expenses,  and  for  in- 
terest ; 

(46)  Dividends  on  stock,  amount  and  rate  per  cent. ; 


Chap.  49.]       RAILROAD  COMPANIES.  755 

(47)  Payment  to  surplus  fund  and  total  amount  of  said 

(48)  The  number  of  persons  injured  in  life  and  limb, 
and  the  cause  of  the  injury,  and  whether  passengers  or 
persons  employed;  whether  any  such  accidents  have 
arisen  from  carelessness  or  negligence  of  any  person  m 
the  employment  of  the  corporation,  and  whether  su  h 
person  is  retained  in  the  service  of  the  corporation; 

(49)  It  shall  be  the  duty  of  the  proper  state  officer  to 
arrange  the  information  contained  in  such  reports  m  a 
tabular  form  and  compare  the  same  together  with  the 
said  reports  in  a  single  document  for  printing  for  the  use 
of  the  general  assembly  and  report  the  same  to  the  gen- 
eral assembly  on  the  first  day  of  its  session; 

(50)  All  the  items  under  the  heads  of  expenses  of  main- 
taining the  road  or  real  estate  of  the  corporation;  ex- 
penses of  machinery,  of  personal  property  of  the  corpora- 
tion; expenses  of  use  of  road  and  machinery  or  operating 
the  road,  shall  be  carried  out  under  two  heads,  the  one 
showing  the  cost  of  f leight  transportation,  the  other  the 
cost  of  passenger  transportation; 

(51)  The  provisions  of  this  section  shall  apply  to  ail  ex- 
isting railroad  corporations,  and  the  report  of  the  said 
existing  railroad  corporations,  made  in  pursuance  of  the 
provisions  of  this  section,  shall  be  deemed  to  be  a  full 
compliance  with  any  existing  law  or  resolution  requiring 
annual  reports  to  be  made  by  such  corporation. 

Sec.  1960.  Penalty  for  falling  to  report.  1871-'2,  c.  138, 
s.  32. 

Any  such  corporation  which  shall  neglect  to  make  the 
report  as  is  provided  in  the  preceding  section  shall  be 
liable  to  a  penalty  of  five  hundred  dollars,  to  be  sued  for 
in  the  name  of  the  state  of  North  Carolina  m  the  supe- 
rior court  of  "Wake  county. 

Sec.  1961.  General   assembly   may  reduce   profits  upon 
road.    1871-'3,  c.  138,  s.  33. 

The  general  assembly  may,  when  any  railroad  shall  be 
opened  for  use,  from  time  to  time  alter  or  reduce  the 
rate  of  freight,  fare,  or  other  profits  upon  such  road,  but 
the  same  shall  not,  without  the  consent  of  the  corpora- 
tion, be  so  reduced  as  to  reduce  said  profits  less  than  six 
per  cent,  per  annum  on  the  capital  actually  expended, 
nor  unless  on  an  examination  of  the  amounts  received 
and  expended,  to  be  made  by  the  auditor  or  other  officer 
charged  with  the  duty,  they  shall  ascertain  that  the  net 


Y56  RAILROAD  COMPANIES.        [Chap.  49. 

income  derived  by  the  company  from  all  sources  for  the 
year  then  last  past  shall  have  exceeded  an  annual  income 
of  six  per  cent,  upon  the  capital  of  the  corporation  actu- 
ally expended. 
Railroad  Co.  v.  Com'rs,  74—506;  Railroad  Co.  v.  GoTernor,  74—707. 

Sec.  1962.  Passenger.s  Tiolating  rules  of  corporation  may 
be  ejected.    1871-'3,  c.  138,  s.  34. 

If  any  passenger  shall  reluseto  pay  his  fare,  or  violate 
the  rules  of  the  corporation,  it  shall  be  lawful  for  the 
conductor  of  the  train  and  the  servants  of  the  corpora- 
tion to  put  him  and  his  baggage  out  of  the  cars,  using  no 
unnecessary  force,  at  any  usual  stopping  place  or  near 
any  dwelling  house,  as  the  conductor  shall  elect,  on 
stopping  the  train. 

Sec.  1963.  Rules  for  transportation.    1871-'3,  c.  138,  s. 
35. 

Every  railroad  corporation  shall  start  and  run  their 
cars  for  the  transportation  of  passengers  and  property 
at  regular  times  to  be  fixed  by  public  notice,  and  shall 
furnish  sufficient  accommodation  for  the  transportation 
of  all  such  passengers  and  property  as  shall, within  a  reas- 
onable time  previous  thereto,  be  offered  for  transporta- 
tion at  the  place  of  starting  and  the  junction  of  other 
railroads  and  at  usual  stopping  places  established  for  re- 
ceiving and  discharging  way  passengers  and  freights  for 
that  train,  and  shall  take,  transport  and  discharge  such 
.passengers  and  property  at,  from  and  to  such  places; on 
the  due  payment  of;  the  "freight  or  fare  legally  authorized 
therefor,  and  shall  be  hable  to  the  party  aggrieved,  in 
an  action  for  damages,  for  any  neglect  or  refusal  in  the 
premises. 

Sec.  1964.  Kailroads,  &c.,  to  receive  and  forward  IteigLts; 
penalty  for  refusal.    1879,  c.  182,  s.  1. 

Agents  or  other  officers  of  railroads  and  other  transpor- 
tation companies  whose  duties  it  is  to  receive  freights  shall 
receive  all  articles  of  the  nature  and  kind  received  by  such 
company  for  transportation  whenever  tendered  at  a 
regular  depot,  station,  wharf  or  boat  landing,  and  shall 
forward  the  same  by  the  route  selected  by  the  person 
tendering  the  freight  under  existing  laws;  and  the  trans- 
portation company  represented  by  any  person  refusing 
to  receive  such  freight  shall  be  "liable  to  a  penalty  of 
fifty  dollars,  and  each  article  refused  shall  constitute  a 
.separate  offence. 


Chap.  49.]       EAILROAD  COMPANIES.  T57 

Sec.  1965.  To  keep  a  list  of  freiglit  charges  posted;  not  to 
be  increased  without  notice;  penalty.  1879,  c.  182, 
s.  2. 

It  shall  be  the  duty  of  all  railroad  and  other  transpor- 
tation companies  to  keep  posted  in  a  conspicuous  place 
in  theh-  depots  or  places  where  freight  is  received  tor 
shipment  a  list  of  its  charges  for  carrying  freight,  specify - 
inp-  name  of  place,  class  of  freight  and  charge  for  carry- 
ing the  same.  Such  charges  shall  not  be  increased  with- 
out giving  fifteen  days"  notice,  and  the  company  repre- 
sented by  any  agent  refusing  to  comply  with  this  section 
shall  be  liable  to  a  ]>enalty  of  not  less  than  fifty  nor  more 
than  one  hundred  dollars. 

Sec.  1966.  Discrimination  in  freight  unlawful;  penalty; 
special  contracts  may  be  made.  1874-'6,  c  240. 
1879,  c.  237,s.  1. 

It  shall  be  unlawful  for  any  railroad  corporation  oper- 
ating in  this  state  to  charge  for  the  transportation  of  any 
freight  of  any  description  over  its  road  a  greater  amount 
as  toll  or  compensation  than  shall  at  the  same  time  be 
charged  by  it  for  the  transportation  of  an  equal  quantity 
of  the  same  class  of  freight  transported  in  the  same  di- 
rection over  any  portion  of  tame  railroad  of  equal  dis- 
tance, and  any  railroad  company  violating  this  section 
shall  forfeit  and  pay  the  sum  of  two  hundred  dollars  for 
each  and  every  offence  to  any  person  suing  for  the  same. 
Nothing  in  this  chapter  shall  be  taken  in  any  manner  as 
abridging  the  right  of  any  railroad  company  from  mak- 
ing special  contracts  with  shippers  of  large  quantities  of 
freight,  to  be  of  not  less  in  quantity  or  bulk  than  one 
car  load. 

Branch  v.  B.  K.  Co.,  77—347. 

Sec.   1967.    Freight    unshipped    for    five  days;   penalty. 
1874-'5,  c.  240,  s,  2. 

It  shall  be  unlawful  for  any  railroad  company  operat- 
ing in  this  state  to  allow  any  freight  they  may  receive 
for  shipment  to  remain  unshipped  for  more  than  five 
days  unless  otherwise  agreed  between  the  railroad  com- 
pany and  the  shipper,  and  any  company  violating  this 
section  shall  forfeit  and  pay  the  sum  of  twenty-five  dol- 
lars for  each  day  said  freight  remains  unshipped,  to  any 
person  suing  for  the  same. 

Branch  v.  R.  R.  Co.,  77—347;  Capehart  v.  R.  R.  Co.,  81—438:  Katzen- 
Btein  V.  R.  R.  Co.,  84-688;  Keeter  v.  R.  B.  Co.,  86-346;  Whitehead  v. 
R.  R.  Co.,  87—255. 


758  RAILROAD  COMPANIES.       [Chap.  49. 

Sec.  1968.  Pooling  freights  and  rebates  forbidden;  pen- 
alty.   1879,  c.  237,  s.  3. 

It  shall  be  unlawful  for  railroad  companies  to  pool 
freights  or  to  allow  rebates  on  freights;  and  all  persons 
whether  railroad  officials  or  others,  who  shall  be  con- 
cerned in  pooling  freights  or  who  shall  directly  or  indi- 
rectly allow  or  accept  rebates  on  freights  shall  be  guilty 
of  a  misdemeanor,  and  on  conviction  shall  be  fined  not 
less  than  one  thousand  dollars  or  imprisoned  not  less 
than  twelve  months. 

Sec.  1969.  Attorney-general  to  institute  suits  in  certain 
cases.  1865-'6,  Resolution  ratified  December  14, 
1865. 

In  the  event  of  any  contract  having  been  entered  into 
by  any  railroad  company  in  this  state  with  any  person  or 
company,  whereby  preferences  or  exclusive  rights  of 
transportation,  either  in  priority  or  in  arrangements,  is 
given  to  such  person  or  company  the  attorney  general  is 
hereby  instructed  to  institute  proceedings  against  such 
raih'oad  company  for  a  forfeitui'e  of  its  charter. 

Sec.  1970.  Check  and  duplicate  for  baggage;  corpora- 
tion liable  for  loss  of  baggage.    1871-'2,  c.  138,  s.  36. 

A  check  shall  be  affixed  to  every  parcel  of  baggage 
when  taken  for  transportation  by  the  agent  or  servant  of 
such  corporation,  if  there  is  a  handle,  loop  or  fixture  so 
that  the  same  can  be  attached  upon  the  parcel  or  baggage 
so  offered  for  transportation,  and  a  duplicate  thereof 
given  to  the  passenger  or  person  delivering  the  same  on 
his  behalf;  and  if  such  check  be  refused  on  demand  the 
corporation  shall  pay  to  such  passenger  the  sum  of  ten 
dollars  to  be  recovered  in  a  civil  action;  and  further,  no 
fare  or  toll  shall  be  collected  or  received  from  such  pas- 
senger, and  if  such  passenger  shall  have  paid  his  fare 
the  same  shall  be  refunded  by  the  conductor  in  charge  of 
the  train,  and  on  producing  said  check  if,  his  baggage 
shaU  not  be  delivered  to  him,  he  may,  by  an  action,  re- 
cover the  value  of  said  trunk  or  baggage. 

Sec.  1971.  How  trains  to  be  arranged;  penalty.  1871-'2, 
c.  138,  s.  37. 

In  forming  a  passenger  train,  baggage,  freight,  mer- 
chandise or  lumber  cars  shall  not  be  placed  in  rear  of  the 
passenger  cars;  and  if  they  or  any  of  them  shall  be  so 
placed,  the  officer  or  agent  who  so  directed  or  knowingly 
suffered  such  an  arrangement,  and  the  conductor  of  the 


Chap.  49.]       RAILROAD  COMPANIES.  759 

train,  shall  be  guilty  of  a  misdemeanor  and  punished  ac- 
cordingly. 

Sec.  1972,  Engineer  intoxicated  a  misdemeanor.  1871- 
'2,  c.  138,  s.  38. 

If  any  person  shall,  while  in  charge  of  a  locomotive 
engine  running  upon  the  railroad  of  any  such  corpora- 
tion or  while  acting  as  the  conductor  of  a  car  or  train  of 
cars  on  any  such  railroad,  be  intoxicated,  he  shall  be 
guilty  of  a  misdemeanor. 

Sec,  1973.  Railroad  companies  prohibited  from  loading 
or  unloading  freight  cars  on  Sunday,  and  also  from 
running  locomotives  or  cars,  except  such  as  shall  he 
run  for  carrying  passengers  or  the  mails.  1879,  cc. 
97,  203. 

No  railroad  company  shall  permit  the  loading  or  un- 
loading of  any  freight  car  on  Sunday;  nor  shall  permit 
any  car,  train  of  cars,  or  locomotive  to  be  run  on  Sunday 
on  any  railroad,  except  such  as  may  be  run  for  the  pur- 
pose of  transporting  the  United  States  mails,  either  with 
or  without  passengers,  and  except  such  as  shall  be  run 
for  carrying  passengers  exclusively:  Provided,  that  the 
word  Sunday  in  this  section  shall  be  construed  to  em- 
brace only  that  portion  of  the  day  between  sunrise  and 
sunset;  and  that  trains  in  transitu,  having  started  on 
Saturday,  may,  in  order  to  reach  the  terminus  or  shops, 
run  until  nine  o'clock  a.  ni.  on  Sunday,  but  not  later,  nor 
for  any  other  purpose  than  to  reach  the  terminus  or 
shops.  And  any  railroad  company  violating  this  section 
shall  be  guilty  of  a  misdemeanor  in  each  county  in  which 
such  car,  train  of  cars  or  locomotive  shall  run,  or  in 
which  any  such  freight  car  shall  be  loaded  or  unloaded; 
and  upon  conviction  shall  be  fined  not  less  than  five  hun- 
dred dollars  for  each  ofl:ence;  the  fine  when  collected  to 
be  paid  to  the  state  treasurer  for  the  use  of  the  pubUc 
schools. 
Keeter  v.  R.  R.  Co.,  86—346. 

Sec,  1974,  Injuries  to  railroad  a  misdemeanor.    1871-'2, 
c,  138,  s,  39. 

If  any  person  or  persons  shall  wilfully  do  or  cause  to 
be  done,  any  act  or  acts  whatever  whereby  any  building, 
construction,  or  work  of  any  railroad  corporation,  or  any 
engine,  machine  or  structure  or  any  matter  or  thing  ap- 
pertaining to  the  same  shall  be  stopped,  obstructed,  im- 
paired, weakened,  injured  or  destroyed,  the  person  or 


760  BAILEOAD  COMPANIES.        [Chap.  49. 

persons  so  ofifending  shall  be  guilty  of  a  misdemeanor, 
and  shall  forfeit  and  pay  to  the  said  corporation  treble 
the  amount  of  damages  sustained  by  means  of  such  of- 
fence. 


Sec.  1975.  Railroad  companies  to  construct  and  maintain 
cattle  guards,  &c.;  failure,  misdemeanor,  1883,  c. 
394,  ss.  1,  3. 

Every  incorporated  company  owning,  operating  or  con- 
structing, or  which  shall  hereafter  own,  operate  or  con- 
struct, or  any  company  which  shall  hereafter  be  incor- 
porated, and  shall  own,  operate  or  construct  any  railroad 
passing  through  and  over  the  land  of  any  person  now 
enclosed,  or  which  may  hereafter  become  enclosed,  shall, 
at  its  own  expense,  construct  and  constantly  maintain 
in  good  and  safe  condition,  good  and  sufficient  cattle 
guards  at  the  points  of  entrance  upon  and  exit  from  said 
enclosed  land,  and  they  shall  also  make  and  keep  in  con- 
stant repair  crossings  to  any  plantation  road  thereupon. 
Every  such  corporation  which  shall  fail  to  erect  and  con- 
stantly maintain  such  cattle  guards  and  crossings  shall 
be  guilty  of  a  misdemeanor,  and  fined  in  the  discretion 
of  the  court,  and  shall  be  further  hable  to  an  action  for 
damages  to  the  party  aggrieved. 

Sec.  1976.  How  actions  may  be  brought.  1871-'2,c.  138, 
s.  40. 

All  penalties  imposed  by  this  chapter  may,  unless  oth- 
erwise provided,  be  sued  for  in  the  name  of  the  state; 
and  if  such  penalty  be  for  a  sum  not  exceedmg  two  hun- 
dred dollars,  then  such  suit  may  be  brought  before  a  jus- 
tice of  the  peace,  and  may  be  commenced  by  serving  a 
summons  on  any  director  of  such  company. 

Sec.  1977.  Chart  of  railroad  to  be  made  and  filed.  1871- 
'3,  c.  138,  s.  41. 

Every  corporation  shall,  within  a  reasonable  time  af- 
ter their  road  shall  be  constructed,  cause  to  be  made  a 
map  and  profile  thereof,  and  of  the  land  taken  or  ob- 
tained for  the  use  thereof,  and  file  the  same  in  the  office 
for  registering  deeds  in  each  county  through  which  such 
parts  of  said  road  shall  pass.  Every  such  map  shall 
be  drawn  on  a  scale  and  on  paper,  to  be  designated  by 
the  secretary  of  state,  and  certified  and  signed  by  the 
president  or  engineer  of  such  corporation. 


Chap.  49.]        EAILEOAD  COMPANIES.  761 

Sec.  1978.  Injury  to  passengers  not  complying  with  regu- 
lations.    1871-'2,  c.  138,  s.  43. 

In  case  any  passenger  on  any  railroad  shall  be  injui'ed 
while  on  the  platform  of  a  car  or  on  any  baggage,  wood 
or  freight  car,  in  violation  of  the  printed  regulations  of 
the  company  posted  up  at  the  time  in  a  conspicuous 
place  inside  its  passenger  cars  then  in  the  train,  such 
company  shall  not  be  liable  for  the  injury:  Provided, 
said  company  at  the  time  furnish  room  inside  its  passen- 
ger cars  sufficient  for  the  proper  accommodation  of  its 
passengers. 

Sec.  1970.  Unlawful  to  enter  railroad  cars  after  being  for- 
bidden, misdemeanor.    1883,0.351. 

It  shall  be  unlawful  for  any  person  to  enter  into  a 
railroad  passenger  car,  or  baggage  car,  or  mail  car,  or 
caboose  car,  or  upon  the  platforms  of  said  cars  after  be- 
ing forbidden  so  to  do  by  the  conductor  or  his  assistants, 
or  the  baggage  master  or  other  person  in  charge  of  said 
cars,  unless  said  persons  enter  said  cars  or  on  said  plat- 
forms as  a  passenger  or  in  some  official  capacity  author- 
ized by  law,  or  on  business  with  a  passenger  or  some  of- 
ficial or  employee  of  the  railroad  or  other  like  purpose, 
and  for  every  violation  of  this  section  the  person  so  of- 
fending shall  be  guilty  of  a  misdemeanor,  and  shall  be 
fined  not  exceeding  ten  dollars. 

Sec.  1980.  Kailroads  formed  under  this  chapter  not  com- 
pleted in  specified  time,  corporate  existence  ceases. 
1871-'3,  c.  138,  s,  43. 

If  any  corporation  shall  not  within  two  years  after  its 
articles  of  association  are  filed  and  recorded  in  the  office 
of  the  secretary  of  state,  or  the  passage  of  its  charter, 
begin  the  construction  of  its  road  and  expend  thereon 
ten  per  cent,  of  the  amount  of  its  capital,  or  shall  not 
finish  the  road  and  put  it  in  operation  in  ten  years  from 
the  time  of  filing  its  articles  of  association  or  passage  of 
its  charter  as  aforesaid,  its  corporate  existence  and  pow- 
ers shall  cease. 

Sec.  1981.  General  assembly  may  annul  any  corporation. 
1871-'3,  c.  138,  s.  44. 

The  general  assembly  may  at  any  time  annul  or  dis- 
solve any  corporation;  but  such  dissolution  shall  not  take 
away  or  impair  any  remedy  given  against  any  such  cor- 
poration, its  stockholders  or  officers  for  any  liability 
which  shall  have  been  previously  incurred. 

R.  R.  Co.  V.  R.  R.  Co.,  83—489. 


762  RAILROAD  COMPANIES.       [Chap.  49. 

Sec.  1983.  Kights  and  privileges.    1871-'2,  c.  138,  s.  45. 

All  existing  railroad  corporations  within  this  state  shall 
respectively  have  and  possess  all  the  powers  and  pn\i- 
leges  contained  in  this  chapter;  and  they  shall  be  subject 
to  all  the  duties,  liabilities  and  provisions  of  this  chapter 
not  inconsistent  with  their  charters. 

R.  R.  Co.  V.  R.  R.  Co.,  83-489;  R.  R.  Co.  v.  Com'rs,  84—504. 

Sec.  1983.  Railroads  embracing' the  same  location  of  line. 
1871-'2,  c.  138,  s.  46. 

Whenever  two  railroad  companies  shall,  for  a  portion 
of  their  respective  lines,  embrace  the  same  location  of 
line,  they  may  by  agreement  provide  for  the  construc- 
tion of  so  much  of  said  line  as  is  common  to  both  of 
them,  by  one  of  the  companies,  and  for  the  manner  and 
terms  upon  which  the  business  thereon  shall  be  per- 
formed. Upon  the  making  of  such  an  agreement,  the 
company  that  is  not  to  construct  the  part  of  the  line 
which  is  common  to  both,  may  terminate  its  line  at  the 
point  of  intersection,  and  may  reduce  its  capital  to  a  sum 
of  not  less  than  five  thousand  dollars  for  each  mile  of  the 
road  proposed  to  be  constructed. 

Sec.   1984.   Location  of  railroad  in  an   adjoining  state. 
1871-'2,  c.  138,  s.  47. 

Whenever  after  due  examination  it  shall  be  ascertained 
by  the  directors  of  any  raihoad  company  that  a  part  of 
the  line  of  railroad  proposed  to  be  made  between  any  two 
points  in  this  state  ought  to  be  located  and  constructed 
in  an  adjoining  state,  it  may  be  so  located  and  con- 
structed by  a  vote  of  two-thirds  of  all  the  directors,  and 
the  sections  of  said  railroad  within  this  state  shaU  be  con- 
sidered a  connected  line,  and  tlie  directors  may  reduce 
the  capital  specified  to  such  amount  as  may  be  deemed 
proper,  but  not  less  than  the  amount  required  by  law  for 
the  number  of  miles  of  railroad  to  be  actually  constructed 
in  this  state. 

Sec.  1985.  Unclaimed  ft-eight,  publication  thereof.  1871- 
'3,  c.  138,  s.  48. 

Every  railroad  company  whicli  shall  have  had  un- 
claimed freight,  not  jierishable,  in  its  possession  for  a 
period  of  one  year  at  least,  may  proceed  to  sell  the  same 
at  public  auction,  and  out  of  the  proceeds  may  retain  the 
charges  of  transportation  and  storage  of  such  fieight  and 
the  expenses  of  advertising  and  sale  thereof;  but  no  such 
sale  shall  be  made  until  the  expiration  of  four  weeks 


Chap.  49.]       KAILROAD  COMPANIES.  763 

from  the  first  publication  of  notice  of  such  sale  in  a  state 
paper  and  also  in  a  newspaper  published  at  or  nearest  the 
place  at  which  such  freight  was  directed  to  be  left,  and 
also  at  the  place  where  such  sale  is  to  take  place;  and 
said  notice  shall  contain  a  description  of  such  freight,  the 
place  at  which  and  the  time  when  the  same  was  left,  as 
near  as  may  be,  together  ^vith  the  name  of  the  owner  or 
person  to  whom  consigned,  if  known,  and  expenses  in- 
curred for  advertising  shall  be  a  lien  upon  such  freight  in 
a  ratable  proportion,  according  to  the  value  of  each 
article,  package  or  parcel,  if  more  than  one. 

Sec.    1986.    Unclaimed   freight   perishable,   what   done. 
1871-'2,  c.  138,  s.  49. 

In  case  such  unclaimed  freight  shall  in  its  nature  be 
perishable,  then  the  same  may  be  sold  as  soon  as  it  can 
be  on  giving  the  notice  required  in  the  preceding  section, 
after  its  receipt  at  the  place  where  it  was  directed  to  be 
left. 

Sec.  1987.    Unclaimed   funds   to   go   to   the   University. 
1871-'2,  c.  138,  s.  50. 

Such  railroad  company  shall  make  an  entry  of  the  bal- 
ance of  the  proceeds  of  the  sale,  if  any,  of  each  parcel  of 
freight  owned  by  or  consigned  to  the  same  person,  as 
near  as  can  be  ascertained,  and  at  any  time  within  five 
years  thereafter  shall  refund  any  surplus  so  retained  to 
the  owner  of  such  freight,  his  heirs  or  assigns,  on  satis- 
factory proof  of  such  ownership;  if  no  person  shall  claim 
such  surplus  witliin  five  years,  said  surplus  shall  be  paid 
to  the  University. 

Sec.   1988.  Police  force  may  be  established.    1871-'3,  c. 
138,  s.  51. 

Any  railroad  corporation  on  which  road  steam  is  used 
as  the  motive  power  may  apply  to  the  governor  to  com- 
mission such  persons  as  the  said  coi-poration  may  desig- 
nate to  act  as  pohcemen  for  said  corporation. 

Sec.  1989.  Governor  to  appoint  police.    1871-'2,  c.  138, 
s.  53. 

The  governor  upon  such  application  may  appoint  such 
persons  or  so  many  of  them  as  he  may  deem  proper  to  be 
such  pohcemen,  and  shall  issue  to  such  person  or  persons 
so  appointed  a  commission  to  act  as  such  policemen. 


764  EAILEOAD  COMPANIES.        [Chap.  49. 

Sec.  1990.  Policemen  to  take  an  oatb.    1871-'2,  c.  138, 
s.  53. 

Every  policeman  so  appointed  shall,  before  entering 
upon  the  duties  of  his  office,  take  and  subscribe  the  usual 
oath;  such  oath  with  a  copy  of  the  commission  shall  be 
filed  with  the  secretary  of  state  and  a  certificate  therepf 
by  said  secretary  be  filed  with  the  clerk  of  each  county 
through  or  into  which  the  railroad  for  which  such  police- 
man is  appointed  may  run  and  in  which  it  is  intended 
he  shall  act,  and  such  policemen  shall  severally  possess 
within  the  hmits  of  the  county  all  the  powers  of  police- 
men in  the  several  towns,  cities  and  villages  in  which  they 
shall  be  so  authorized  to  act  as  aforesaid. 

Sec.  1991.  Badge  of  policemen.    1871-'2,  c.  138,  s.  54. 

Such  railroad  police  shall,  when  on  duty,  severally 
wear  a  metallic  shield  with  the  words  "Eailway  Police," 
and  the  name  of  the  corporation  for  which  appointed 
inscribed  thereon,  and  said  shield  shall  always  be 
worn  in  plain  view  except  when  employed  as  detec- 
tives. 

Sec.  1992.  Compensation.    1871-'2,  c.  138,  s.  56. 

The  compensation  of  such  police  shall  be  paid  by  the 
companies  for  which  the  policemen  are  respectively  ap- 
pointed as  may  be  agreed  on  between  them. 

Sec.  1993.  Dismissal  of  police.    1871-'2,  c.  138,  s.  56. 

Whenever  any  company  shall  no  longer  require  the 
services  of  any  policeman  so  appointed  as  aforesaid,  they 
may  file  a  notice  to  that  efifect  in  the  sevei-al  offices  in 
which  notice  of  such  appointment  was  originally  filed, 
and  thereupon  the  power  of  such  officer  shall  cease  and 
be  determined. 

Sec.  1994.  Transfer  of  capital  stock;  certificate  to  be  filed 
in  office  of  secretary  of  state.    187 1-'2,  c.  138,  s.  57. 

Any  railroad  corporation  or  its  successors,  being  the 
lessee  of  the  road  of  any  other  raih-oad  corporation, 
may  take  a  surrender  or  transfer  of  the  capital  stock  of 
the  stockholders  or  any  of  them,  in  the  corporation  whose 
iTjad  is  held  under  lease,  and  issue  in  exchange  therefor 
the  like  additional  amount  of  its  own  capital  stock  at  par, 
or  on  such  other  terms  and  conditions  as  may  be  agreed 
upon  between  the  two  corporations;  and  whenever  the 
greater  part  of  the  capital  stock  of  any  such  corporation 
shall  have  been  so  surrendered  or  transferred,  the  direc- 


Chap.  49.]        RAILROAD  COMPANIES.  T65 

tors  of  the  corporation  taking  such  surrender  or  transfer 
shall  thereafter,  on  a  resolution  electing  so  to  do  to  be 
entered  on  their  minutes,  become  ex-officio  the  directors 
of  the  corporation  whose  road  is  so  held  under  lease,  and 
shall  manage  and  conduct  the  affairs  thereof  as  provided 
by  law;  and  whenever  the  whole  of  said  capital  stock 
shall  have  been  so  surrendered  or  transferred,  and  a  cer- 
tificate thereof  filed  in  the  office  of  the  secretary  of  state 
under  the  common  seal  of  the  corporation  to  whom  such 
surrender  or  transfer  shall  have  been  made,  the  estate, 
property,  rights,  privileges  and  franchises  of  the  said 
corporation  whose  stock  shall  have  been  so  surrendered 
or  transferred,  shall  thereupon  vest  in  and  be  held  and 
enjoyed  by  the  said  corporation  to  whom  such  surrender 
or  transfer  shall  have  been  made,  as  fully  and  entirely 
and  without  charge  or  dimunition  as  the  same  were  be- 
fore held  and  enjoyed,  and  be  managed  and  controlled  by 
the  board  of  directors  of  the  said  corporation  to  whom 
such  surrender  or  transfer  of  the  said  stock  shall  have 
been  made  in  the  corporate  name  of  such  corporation. 
But  the  property,  rights,  franchises  and  profits  of  every 
corporation  so  surrendered,  transferred  or  leased,  shall 
hereafter  always  be  liable  to  taxation,  and  shallnever  be 
exempt  therefrom.  The  rights  of  any  stockholder  not  so 
surrendering  or  transferring  his  stock  shall  not  be  in  any 
way  affected  thereby,  nor  shall  existing  liabilities  or  the 
rights  of  creditors  of  the  corporation  where  stock  shall 
have  been  so  surrendered  or  transferred  be  in  any  way  af- 
fected or  impaired  by  this  section. 

Sec.  1995.  Directors  of  various  railroads  authorized  to 
make  arrangements  to  give  through  freight  and  travel. 
1866-'7,  c.  105,  s.  1. 

The  directors  representing  the  stock  held  in  the  various 
railroad  corporations  are  hereby  authorized  and  empow- 
ered to  enter  into  such  agreements  and  terms  with  each 
other  as  to  secure  through  freight  and  travel  without  the 
expense  of  transfer  of  freight,  or  breaking  the  bulk 
thereof,  at  different  points  along  the  hues,  and  for  this 
purpose  may  use  the  road  or  roads  of  said  corporations  or 
companies,  and  rolling  stock  thereof,  on  such  terms  as 
may  be  agreed  upon  by  the  directors  of  said  corporations 
or  companies. 

Sec.  1996.  Subscription  to  stock  may  he  made  by  board 
of  county  commissioners.    1868-'9,  c.  171,  s.  1. 
The  boards  of  commissioners  of  the  several  counties  shall 


766  EAILROAD  COMPANIES.        [Chap.  49. 

have  power  to  subscribe  stock  to  any  railroad  company 
or  companies,  when  necessary  to  aid  in  the  completion  of 
any  railroad  in  which  the  citizens  of  the  county  may  have 
an  interest.  •' 

Bill  V.  Com'rs,  67—367;  Street  v.  Com'rs,  76—44. 

Sec.  1997.  Manner  in  whicli  subscriptions  by  board  to  be 
made ;  proviso.     1868-'9,  c.  171,  s.  2. 

The  board  of  commissioners  of  any  county  proposing 
to  take  stock  in  any  railroad  company  shall  meet  and 
agree  upon  the  amount  to  be  subscribed,  and  if  a  majority 
of  the  board  shall  vote  for  the  proposition,  this  shall  be 
entered  of  record,  which  shaUshow  the  amount  proposed 
to  be  subscribed,  to  what  company,  and  whether  in  bonds 
money  or  other  property,  and  thereupon  the  board  shall 
order  an  election,  to  be  held  on  a  notice  of  not  less  than 
thirty  days,  for  the  purpose  of  voting  for  or  against  the 
proposition  to  subscribe  the  amount  of  stock  agreed  on 
by  the  board  of  county  commissioners.  And  if  a  majority 
of  the  qualified  voters  of  the  county  shall  vote  in  favor  of 
the  proposition,  the  board  of  county  commissioners 
through  their  chairman,  shall  have  power  to  subscribe 
the  amount  of  stock  proposed  by  them,  and  submitted  to 
the  people  subject  to  all  the  rules,  regulations  and  restric- 
tions of  other  stockholders  in  such  company  or  companies: 
Provided,  that  the  counties,  in  the  manner  aforesaid 
shall  subscribe  from  time  to  time  such  amounts,  either 
m  bonds  or  money,  as  they  may  think  proper. 

Caldwell  v.  Justices,  4  Jon.  Eq.,  323;  Manly  v.  Raleigh,  4  Jon.  Eq    370- 
Cain  V.  Com'rs.  86—8.  '        ' 

Sec.  1998.  Elections,  bow  held.    1868-'9,  c.  171,  s.  3. 

u  ^^-^lections  ordered  under  the  preceding  section  shall 
be  held  by  the  sheriff  under  the  laws  and  regulations 
provided  for  the  election  of  members  of  the  general  as- 
sembly. The  votes  shall  be  compared  by  the  boards  of 
county  commissioners,  who  shall  make  a  record  of  the 
same. 

Simpson  v.   Com'rs.  84-158;    Norment  v.  Charlotte.  85— 378-    Cain  v 
Com'rs,  86—8. 

Sec.  1999.  Interest  on  bonds,  how  paid.    1868-'9  c   171 
s.  4.  >    •  . 

•  -l^  ^^^^  *^^  county  shall  subscribe  the  amount  proposed 
in  bonds,  the  board  of  commissioners  shall  have  power  to 
nx  the  rate  of  interest,  not  to  exceed  the  rate  of  eight 
per  cent.,  when  the  interest  on  said  bonds  shall  be  pay- 


Chap.  49.]        EAILEOAD  COMPANIES.  767 

able,  and  at  what  place,  and  shall  also  fix  the  time  and 
places  of  paying  the  interest,  and  shall  also  determine  the 
mode  and  manner  of  the  same;  and  also  to  raise  by  taxa- 
tion, from  year  to  year,  the  amount  necessary  to  meet 
the  interest  on  said  bonds. 

Sec.  3000.  Taxes,  liow  paid.     1868-'9,  c.  171,  s.  5. 

The  taxes  authorized  by  the  three  preceding  sections 
to  be  raised  for  the  payment  of  interest  or  principal,  shall 
be  collected  by  the  sheriff  in  like  manner  as  other  state 
taxes,  and  be  paid  into  the  hands  of  the  county  treasurer, 
to  be  used  by  the  chairman  of  the  board  of  county  com- 
missioners as  directed  by  this  chapter. 

Sec.  2001.  Officers  of  railroads  to  account  to  their  suc- 
cessors; penalty  for  failure  or  refusal.  1870-'71,  c.  72, 
ss.  1,  3. 

The  president  and  directors  of  the  several  railroads, 
and  all  persons  acting  under  them,  are  hereby  required 
upon  demand  to  account  with  the  president  and  directors 
elected  or  appointed  to  succeed  them,  and  shall  transfer  to 
them  forthwith  all  the  money,  books,  papers,  choses  in 
action,  property  and  effects  of  every  kind  and  description 
belonging  to  such  company,  and  anyone  refusing  or  fail- 
ing to  account  for  and  transfer  all  the  money,  books,  pa- 
pers, choses  in  action,  property  and  effects,  as  herein  re- 
quired, shall  be  guilty  of  a  misdemeanor,  and  shall  be 
punished  by  imprisonment  in  the  penitentiary  for  not 
less  than  one  nor  more  than  five  years,  and  be  fined  at 
the  discretion  of  the  court.  All  persons  conspiring  with 
any  such  president,  directors  or  their  agents  to  defeat, 
delay  or  hinder  the  execution  of  this  section  shall  be 
guilty  of  a  misdemeanor,  and  punished  in  hke  manner. 

State  T.  Jones,  67—210. 

Sec.  2002.  Governor  may  make  a  requisition  upon  other 
states.    1870-'71,  c.  72,  s.  2. 

The  governor  is  hereby  authorized,  at  the  request  of 
the  president,  directors,  and  other  officers  of  any  railroad 
company,  to  make  requisition  upon  the  governor  of  any 
other  state  for  the  apprehension  of  any  such  president 
failing  to  comply  with  the  preceding  section. 

Sec.  2003.  To  whom  the  provisions  of  preceding  sections 
are  applicable.    1870-'71,  c.  72,  s.  4. 

The  two  preceding  sections  shall  apply  to  all  pi-esidentr. 
and  directors  and  their  agents  who  have  not  settled  in 


768  RAILROAD  COMPANIES.        [Chap.  49. 

full  with  their  successors  in  office  prior  to  the  fifteenth 
day  of  February,  one  thousand  eight  hundred  and  seventy- 
one. 

Sec.  2004.  Two  hundred  and  jBfty  dollars  must  be  paid 
before  bill  to  incorporate  or  to  amend  railroad  charter 
can  be  introduced. 

No  bill  to  incorporate  any  railroad  company,  or  to  alter, 
amend,  change  or  modify  any  act  of  incorporation  of  any 
railroad  company,  other  than  one  in  which  the  state  is  a 
stockholder,  shall  be  introduced. into  either  house  of  the 
general  assembly  unless  accompanied  by  the  receipt  of 
the  state  treasurer  for  two  hundred  and  fifty  dollars;  and 
the  same  shall  be  placed  to  the  credit  of  thepublic  school 
fund  by  the  said  treasurer. 

P(Mmni  Proctor  V.  R.  R.  Co.,  ?&— 579;  State  v.  R.  R.  Co.,  73—527. 

Sec.  2005.  Company  dissolved,  &c.;  owner  or  purchaser 
to  be  a  new  corporation  and  property,  &c.,  taxed. 

When  any  railroad  corporation  shall  be  dissolved,  or 
its  property  sold  and  conveyed  under  any  execution,  deed 
of  trust,  mortgage  or  other  conveyance,  the  owner  or  pur- 
chaser shall  constitute  a  new  corporation,  and  the  prop- 
erty, franchises  and  profits  of  said  new  corporation  shaU 
be  taxed  as  other  like  property,  franchises  and  profits  are 
taxed. 

State  V.  Rives,  5  Ired.,  297;  Young  v.  Rollins,  85—485. 

Sec.  2006.  Conditional  sale  of  railroad  property  invalid 
as  to  subsequent  judgment  creditors  or  purchasers  un- 
less in  writing  and  registered;  property  sold,  to  bear 
certain  marks ;  not  to  apply  to  contracts  heretofore 
made.    1883,  c.  416,  ss.  1,  2. 
Whenever  any  railroad  equipment  and  rolling  stock  shall 
hereafter  be  sold,  leased  or  loaned  on  the  condition  that  the 
title  to  the  same,  notwithstanding  the  possession  and  use 
of  the  same  by  the  vendee,  lessee,  or  bailee,  shall  re- 
main in  the  vendor,  lessor  or  bailor  until  the  terms  of 
the    contract,  as  to  the  payment  of  the  instalments, 
amounts  or  rentals  payable,  or  the  performance  of  other 
obligations  thereunder,  shall  have  been  fully  complied 
with;  such  contract  shall  be  invalid  as  to  any  subsequent 
judgment  creditor,  or  any  subsequent  purchaser  for  a 
valuable  consideration  without  notice,  unless: 

(1)  the  same  shall  be  evidenced  by  writing  duly 
acknowledged  before  some  person  authorized  to  take 
acknowledgments  of  deeds. 


Chap.  49.]     TELEGEAPH  COMPANIES.  769 

(2)  Such  writing  shall  be  registered  in  the  same  book 
as  mortgages  are  registered,  in  the  office  of  the  register 
of  deeds  in  the  county  in  which  is  located  the  principal 
office  or  place  of  business  of  such  vendee,  lessee  or  bailee 
within  the  state. 

(3)  Each  locomotive  or  car  so  sold,  leased  or  loaned 
shall  have  the  name  of  the  vendor,  lessor  or  bailor,  or 
the  assignee  of  such  vendor,  lessor  or  bailor  plainly 
marked  upon  both  sides  thereof,  foDowed  by  the  word 
owner,  lessor,  bailor  or  assignee,  as  the  case  may  be. 

This  section  shall  not  apply  to  or  invalidate  any  con- 
tract made  before  the  twelfth  day  of  March,  one  thousand 
eight  hundred  and  eighty-three. 


TELEGRAPHS. 

Sec.  2007.  Telegraph  lines,  who  may  maintain.    1874- 
'5,  c.  303,  s.  2. 

Any  telegraph  company  chartered  or  incorporated  by 
this  or  any  other  state  shall  have  the  right  to  construct, 
maintain  and  operate  lines  of  telegraph  along  any  rail- 
road or  other  public  highway  in  the  state  of  North  Caro- 
hna,  but  such  lines  of  telegraph  shall  be  so  constructed  and 
maintained  as  not  to  obstruct  or  hinder  the  usual  travel 
on  such  railroad  or  other  highway. 

R,  R.  Co.  V.  R.  R.  Co.,  83— 489. 

Sec.  2008.  May  contract  for  right  of  way.     1874-'5,  c. 
203.  s.  3. 

Such  telegraph  company  shall  have  power  to  contract 
with  any  person  or  corporation,  the  owner  of  any  lands 
or  of  any  franchise  or  easement  therein,  over  which  such 
line  of  telegraph  is  proposed  to  be  erected, for  the  right  of 
way  for  planting,  repairing  and  preservation  of  its  tele- 
graph poles  or  other  property,  and  for  the  erection  and 
occupation  of  offices  at  suitable  distances  for  the  public 
accommodation. 

Sec.  2009.  Entitled  to  right  of  way  upon  just  compensa- 
tion.    1874-'5,  c.  203,  s.  4. 

Such  telegraph  company  shall  be  entitled  to  the  right 
of  way  over  the  lands,  privileges  and  easements  of  other 
persons  and  corporations,  and  the  right  to  erect  poles  and 
to  establish  offices,  upon  making  just  compensation  there- 
for. 

33 


770  TELEGRAPH  COMPANIES.     [Chap.  49. 

Sec.  2010.    Proceedings  to  be   by  petition;   facts  to  be 
stated.    1874-'5,  c.  203,  s.  5. 

Whenever  such  telegraph  company  shall  fail  on  appli- 
cation therefor  to  secure  by  contract  or  agreement  such 
right  of  way  for  the  purposes  aforesaid  over  the  lands, 
privilege  or  easement  of  another  person  or  corporation,  it 
shall  be  lawful  for  sucli  telegraph  company,  first  giving 
security  for  costs,  to  file  its  petition  before  the  superior 
court  for  the  county  in  which  said  lands  are  situate,  or 
into  or  through  which  such  easement,  privilege  or  fran- 
chise extends,  setting  forth  and  describing  the  parcels  of 
land,  privilege  or  easement  over  which  the  way,  privilege 
or  right  of  use  is  claimed,  the  owners  of  the  land,  ease- 
ment or  privilege,  and  their  place  of  residence,  if  known, 
and  if  not  known  that  fact  shall  be  stated,  and  such  pe- 
tition shall  set  forth  the  use,  easement,  privilege  or  other 
right  claimed,  and  must  be  sworn  to,  and  if  the  use  or 
right  sought  be  over  or  upon  an  easement  or  right  of 
way,  it  shall  be  sufficient  to  give  jurisdiction  if  the  per- 
son or  corporation  owning  the  easement  or  right  of  way 
be  made  a  party  defendant:  Provided,  that  only  the 
interest  of  such  parties  as  are  brought  before  the  court 
shall  be  condemned  in  any  such  proceedings,  and  if  the 
right  claimed  be  over  or  upon  an  easement  or  right  of 
way  which  extends  into  or  through  more  counties  than 
one,  the  whole  right  and  controversy  may  be  heard  and 
determined  in  one  county  into  or  through  which  such 
easement  or  right  of  way  extends. 

Telegraph  Co.  v.  R.  R.  Co.,  83—420. 

Sec.  2011.  Copy  of  petition  and  notice  to  be  served  on 
persons  claiming  lands,  &c.    1874-'5,  c.  203,  s.  6. 

A  copy  of  such  petition,  with  a  notice  of  the  time  and 
place  the  same  will  be  presented  to  the  superior  court, 
must  be  served  on  the  person  or  persons  whose  interests 
are  to  be  affected  by  the  proceeding  at  least  ten  days 
prior  to  the  presentation  of  the  same  to  the  said  court. 
If  the  person  on  whom  the  service  is  to  be  made  be  a  cor- 
poration, it  shall  be  sufficient  if  notice  be  served  on  an 
officer  or  agent  of  the  corporation  found  in  the  county  in 
which  the  land  or  easement  is  situated,  or  upon  any  other 
officer  of  the  corporation. 

Sec.  2012.  Proceedings  for  condemnation,  appointment 
of  commissioners,  their  report,  exceptions  thereto;  ap- 
peal, final  judgment,  &c.,  to  be  as  provided  in  this  chap- 
ter in  condemning,  &c.,  for  railroads. 

The  proceedings  for  the  condemnation  of  lands,  or  any 


Chap.  50.]    ROADS,  FERRIES  AND  BRIDGES.        771 

easement,  or  interest  tliereiu,  for  the  use  of  telegraph 
companies,  the  appraisal  of  the  lands,  or  interest  therein, 
the  duty  of  the  commissioners  of  appraisal,  the  right  of 
either  party  to  file  exceptions,  the  report  of  commission- 
ers, the  mode  and  manner  of  appeal,  the  power  and 
authority  of  the  court  or  judge,  the  final  judgment,  and 
the  manner  of  its  entry  and  enforcement,  and  the  rights 
of  the  company  pending  the  appeal,  shall  be  as  pre- 
scribed in  this  chapter  for  condemning  lands  to  the  use 
of  railroads. 

Sec.  2013.    Commissioners    may    inspect    the  premises. 
1874-'5,  c.  203,  s.  9. 

In  considering  the  question  of  damages  when  the  in- 
terest sought  is  over  an  easement,  privilege  or  right  of 
way,  the  commissioners  may  inspect  the  premises  or  rest 
their  finding  on  testimony  as  to  them  may  be  satisfac- 
tory, and  the  costs  of  the  proceedings  shall  be  paid  by 
the  petitioner,  unless  in  the  opinion  of  the  superior  court 
the  defendant  improperly  refused  the  privilege,  use  or 
easement  demanded,  in  which  case  the  costs  must  be  ad- 
judged as  to  the  court  may  appear  equitable  and  just. 


CHAPTER  FIFTY. 
ROADS,  FEREIES  AND  BRIDGES. 


Section. 

2014.  What  shall  be  public  roads 
and  ferries;  their  supervision 
given  to  justices  of  the  peace; 
board  of  supervisors  of  public 
roads  and  county  commis- 
sioners to  establish  and  dis- 
continue ferries,  roads  and 
bridges. 

2015.  Meeting  of    board  of    super- 


Section. 

designated;    notice    to    over- 
seeis,  &c. 

2017.  Who  liable  to  work  on  roads; 
time  compelled  to  work. 

2018.  No  person  exempt  from  work- 
ing but  by  board  of  super- 
visors. 

2019.  When  overseer  to  summon 
hands  to  work  roads;  notice; 


visors;  date  of  election,  &c.      |  duty  of  persons  summoned; 


2016.  Townships  to  be  divided  into 
sections  and  overseers  ap- 
pointed;    boundaries    to    be 


proviso. 
2020.  Failure  to  attend    and   ■work, 
misdemeanor;  fine  and  costs. 


772       EOADS,  FERRIES  AND  BRIDGES.     [Chap.  50. 


Section. 

2021.  Overseers  to  report  to  board 
of  supervisors;  report  to  be 
verified;  ■warrant  to  issue 
against  road  band  failing  to 
perform  duty. 

2032.  Overseers  to  report  all  moneys 
collected  to  supervisors;  fail- 
ure to  discharge  dutie«,  mis- 
demeanor; duty  of  chairman 
of  board  of  supervisors. 

2023.  Jurisdiction  of  supervisors 
over  cartways;  jurisdiction  of 
board  of  county  commission- 
ers over  roads;  proviso;  ap- 
peal. 

2024.  Board  of  supervisors  to  report 
to  superior  court;  clerk  to  de- 
liver report  to  foreman  of 
grand  jury;  misdemeanor; 
punishment. 

2025.  Width  of  roads,  cartways, 
bridges;  proviso. 

2026.  Overseers  may  apportion  road 
among  hands,  but  still  liable 
for  default. 

2027.  Timber  and  earth  taken  from 
adjoining  lands. 

2028.  Owners  may  petition  board  of 
commissioners. 

2029.  Footways  and  hollow-bridges 
made  where  supervisors  may 
order;  their  order  presumed 
after  ten  years'  use. 

2030.  Sign-posts  at  fork  of  roads  to 
be  set  up  by  overseers;  pen- 
alty for  neglect. 

2031.  Oa  persons  removing  or  de- 
facing posts  or  mile-marks. 

2033.  Overseer  to  measure  and  mile- 
mark  roads. 

2033.  Penalty  on  overseer  for  gen 
eral  neglect  of  duty. 

2034.  Board  of  supervisors,  &c.,  to 
erect  bridges  at  county  ex- 
pense. 

2035.  Contracts  to  build  bridges 
binding  on  county. 

2036.  Owners  of  mills  and  ditches  on 


Section. 

and  across  roads  to  keep  up 
bridges;  provi  os. 

2037.  Penalty  for  neglect. 

2038.  Ferries  and  roads,  how  estab- 
lished, altered  or  discontin- 
ued. 

2039.  Board  may  order  how  costs 
shall  be  paid;  appeal;  contro- 
versies concerning  roads,  &c., 
carried  by  appeal  to  the  supe- 
rior court  to  be  tried  by  a 
jury. 

2040.  Roads,  how  laid  out. 

2041.  When  roads  changed,  how  re- 
ceived. 

2042.  How  persons  may  turn  roads 
on  their  own  lands. 

2043.  Board  of  supervisors  in  ten 
days  to  furuish  constable  with 
orders  appointing  overseers; 
constable  to  apply  to  board 
for  orders  and  serve  them 
within  twenty  days;  penalty 
on  board  and  constable  for 
neglect. 

2044.  Notice,  how  served. 

2045.  Toll-bridges  allowed  by  board 
of  commissioners,  when ; 
builders  to  keep  them  in  re- 
pair or  forfeit  toll  and  be  in- 
dicted. 

2046.  Tolls  of  ferry  regulated  by 
board  of  commissioners;  pen- 
alty for  refusing  to  keep  it 
up. 

2047.  Owner  may  build  toll-bridge 
at  his  ferry;  draw-bridge, 
when  made. 

2048.  Bonds  of  owners  of  ferries  and 
toll-bridges  to  be  taken  by 
board  of  commissioners;  per- 
sons injured  may  recover 
damages. 

2049.  Penalty  for  keeping  ferry,  &c., 
without  authority;  proviso  for 
mail  carriers. 

2050.  Fastening  vessels  to  float 
bridge;  penalty. 


Chap.  50.]    EOADS,  FERRIES  AND  BRIDGES.        773 


Section. 

2051.  Railroad  companies    to  keep 

draw-bridge. 
2053.  Owners  of  steam-boats,   &c., 

to  notify  owners  of  bridges  to 

construct  draws;   penalty  for 

neglect. 

2053.  Counties  to  erect  draws  where 
necessary. 

2054.  Railroad  companies,  &c.,  to 
keep  bridges  over  county 
roads;  penally  for  failure. 

2055.  Duty  of  solicitors  to  prosecute 
for  injuries  to  bridges. 

2056.  Cart-ways,  in  what  cases  and 
how  obtained;  proceedings 
therefor. 

2057.  May  be  changed  or  discontin- 


Section. 

ued,  and  gates  and  bars  erect- 
ed, &c. ;  penalty  for  injuring 
them. 

2058.  License  to  erect  gates  across 
highways,  how  obtained. 

2059.  Who  exempt  from  working  on 
roads. 

2060.  Expenses  borne  by  whole  peo- 
ple of  county,  when. 

2061.  Road-steamers  may  run  upon 
public  roads. 

2062.  Boards  of  supervisors  to  lay 
out,  &c.,  church  roads. 

2063.  Petition  for  the  same. 

2064.  Manner  of  laying  out  roads. 

2065.  Obstruction  of   road,   &c.,   a 
misdemeanor. 


Sec.  2014.  What  shall  be  public  roads  and  ferries;  their 
supervision  given  to  justices  of  the  peace;  board  of 
supervisors  of  public  roads  and  county  commissioners 
to  establish  and  discontinue  ferries,  roads  and  bridges. 
B.  C,  c.  101,  s.  1.    1784,  c.  327,  s.  1.    1868,  c.  20,  ss. 
11,  16,  17,  18.    lS68-'9,  c.  185,  s.  14.    1879,  c.  82, 
s.  1. 
All  roads  and  ferries  that  have  been  laid  out  or  ap- 
pointed by  virtue  of  any  act  of  assembly,  or  any  order  of 
court,  are  hereby  declared  to  be  public  roads  and  ferries: 
and  the  justices  of  the  peace  in  each  township  shall  have 
the  supervision  and  control  of  the  public  roads  in  their 
respective  townships.     They  shall,  with  respect  to  this 
work,  constitute  and  be  styled  the  "Board  of  Supervisors 
of  Public  Roads  "  of  such  township,  and  under  that  name, 
for  tlie  purposes  aforesaid,  they  are  hereby  incorporated 
the   "Board  of  Supervisors  of  Public  Roads,"  and  the 
board  of  county  commissioners,  as  hereafter  in  this  chap- 
ter set  forth,  shall  have  full  power  and  authority  within 
their  respective  counties  to  appoint  and  settle  ferries;  to 
order  the  laying  out  of  public  roads  where  necessary;  to 
appoint  where  bridges  shall  be  made;  to  discontinue  such 
roads  and  ferries  as  shall  be  found  useless;  and  to  alter 
roads  so  as  to  make  them  more  useful. 

Carr  v.  Hairston,  1  C.  L.  Repos.,  249;  Beard  v.  Long  2  Car.  L.  Repos.,  G9; 
Pipldn  V.  Wynns,  2  Dev.,  403;  Woolard  v.  McCullough,  1  Ired.,  433; 
Baker  v.  Wilson,  3  Ired.,  168;  State  v.  Marble,  4  Ired.,  318;  State  v.  Hun- 
ter, 5  Ired.,  369;  State  v.  Johnson,  11  Ired.,  647;  State  v.  Cardwell,  Busb., 
245;  Tarkington  V.  McRae,  3  Jon.,  47;  Davis  v.  Ramsay,  5  Jon.,  236;  State 


771       EOADS,  FERRIES  AND  BRIDQES.     [Chap.  50. 

V.  McDaniel,  8  Jon.,  284;  Burgwynv.  Lockbart,  Winst.,  269;  Carrow  v. 
Washington  Toll  Bridge  Co.,  Phil.,  118;  Barrington  v.  Neuse  River  Ferry 
Co.,  69— 1C5;  State  v.  Witherspoon,  75—223;  Ashcraft  v.  Lee,  79—34;  Ash- 
craft  V.  Lee,  81—135;  State  v.  Selby,  83—617;  Kennedy  v.  Williams, 
87—6. 

Sec.  2015.  Meeting  of  the  board  of  supervisors;  date  of 
election,  &c.     1879,  c.  82.  s.  2.     1880,  c.  30,  s.  1. 

The  said  board  of  supervisors  shall  meet  at  some  place 
ia  their  respective  townships  to  be  agreed  upon  by  them- 
selves, or  in  the  absence  of  such  agreement,  to  be  named 
by  their  chairman,  on  the  first  Saturday  of  February  and 
August,  for  the  purpose  of  consulting  on  the  subject  of 
the  condition  of  the  roads  in  their  township.  They  shall 
once  in  each  year,  during  the  week  of  their  meeting  in 
August,  go  over  and  personally  examine  all  the  roads  in 
their  township.  They  shall  annually  at  their  meeting  in 
February  elect  some  one  of  their  number  chairman:  Pro- 
vided, that  no  supervisor  shall  receive  any  compensation 
for  his  services  as  supervisor  of  public  roads. 

Sec.  201G.  Townships  to  be  divided  into  sections,  and 
overseers  appointed;  boundaries  to  be  designated;  no- 
tice to  overseers,  &c.  1879,  c.  82,  ss.  3,  7.  1880,  c. 
30,  s.  1. 

The  said  board  of  supervisors  shall  annually  at  the 
meeting  in  February  divide  the  roads  of  their  townships 
into  sections  and  appoint  overseers  for  said  sections  at 
said  meeting.  They  shall  at  the  same  time  allot  the 
hands  to  said  overseers,  and  shall  also  designate  the 
boundaries  or  points  to  which  each  resident  shall  be  liable 
to  w^ork  on  said  section,  and  shall  within  five  days  alter 
such  meeting  certify  to  each  overseer  written  notice  of 
his  appointment,  with  a  list  of  the  hands  assigned  to  his 
section:  Provided,  that  the  board  of  supervisors  may  at 
any  time  alter  the  sections  or  allotment,  but  shall  give 
notice  thereof  to  the  overseer.  Such  overseer  shall  serve, 
and  be  hable  as  such  for  neglect  of  duty,  until  he  shall  be 
relieved  by  the  board,  whicn  shall  be  done  only  upon  his 
showing  that  his  road  is  in  good  condition  as  prescribed 
by  law.  The  overseer  may  resign  after  the  expiration  of 
twelve  months,  provided  "his  road  shall  be  in  good  repair 
and  the  board  of  supervisors  shall  so  find;  and  any  over- 
seer so  resigning,  and  whose  resignation  has  been  accept- 
ed by  the  board,  shall  not  without  his  consent  be  again 
appointed  overseer  until  after  the  expiration  of  two  years 
from  the  date  of  his  resignation.     When  a  public  road 


Chap.  50.]    ROADS,  FEREIES  AND  BRIDGES.       T75 

shall  be  a  dividing  line  between  townships,  the  board  of 
commissioners  of  the  county  shall  determine  as  to  how 
said  road  shall  be  divided,  with  notice  as  to  the  workmg 
of  said  road. 

Cantrell  v.  Pinkney,  8  Ired.,  436;  Calvert  v.  Whittington,  11  Ired.,  278; 
McBoyle  v.  Hanks,  1  Jon.,  133;  Tarkingtoa  v.  McKea,  3  Jon.,  47;  State  v 
Long,  81—563. 

Sec.  2017.  Who  liable  to  work  on  roads;  time  compelled. 
1879,  c.  83,  s.  4.    1880,  c.  30,  s.  3. 

All  able-bodied  male  persons  between  the  ages  of 
eighteen  years  and  forty-five  years  shall  be  requu-ed  un- 
der the  provisions  of  this  chapter  to  work  on  the  public 
roads,  except  the  members  of  the  board  of  supervisors  of 
pubhc  roads,  but  no  person  shall  be  compelled  to  work 
more  than  six  davs  in  any  one  year,  except  m  case  of 
damage  resulting  from  a  storm:  Provided,  that  ten  days 
instead  of  six  days  be  the  limit  as  to  the  counties  west 
of  the  Blue  Ridge. 

Sec.  3018.  No  persons  exempt  from  working  but  by  board 
of  supervisors.  B.  C,  c.  lOl,  s.  13.  1784,  c.  337,  ss. 
8,  9.     1836,  c.  36,  ss.  1,  3. 

No  person  between  the  ages  prescribed  shall  be  exemp- 
ted from  working  upon  the  public  roads,  except  such  as 
shall  be  exempted  by  the  general  assembly,  or  by  the 
board  of  supervisors  of  the  township,  on  account  of  per- 
sonal infirmity;  of  which  the  said  board  shall  be  the  sole 
judge. 

Forbes  v.  Hunter,  1  Jon.,  231;  State  v.  Cauble,  70—62. 

Sec.  3019.  When  overseer  to  summon  hands  to  work 
roads ;  notice ;  duty  of  persons  summoned  ;  proviso. 
1879,  c.  83,  s.  5.     1880,  c.  30,  s.  3. 

The  overseer  of  the  road  shall,  as  often  as  the  road 
shall  require,  subject  to  the  hmitation  in  the  preceding 
section,  summon  the  hands  of  his  section  to  work  on  the 
road,  but  the  said  hands  shall  not  be  required  to  work 
continuously  for  a  longer  time  at  any  one  time  than  two 
days,  and  at  least  fifteen  days  shall  intervene  between 
workings,  except  in  case  of  special  damage  to  the  road, 
resulting  from  a  storm.  The  notice  shall  be  at  least 
three  days  before  the  day  named  for  the  work,  and  shall 
state  the  hour  and  the  place  for  the  meeting  of  the 
hands,  and  what  implement  the  hand  shall  bring  with 
him.  Every  person  hable  to  work  on  the  load  who  has 
been  so  summoned  shall  appear  at  the  time  and   place 


776       EOADS,  FEERIES  AND  BRIDGES.     [Chap.  50. 

named,  and  with  the  implement  directed,  and  shall  work 
on  the  road  under  the  direction  of  the  overseer  until  dis- 
charged by  him :  Provided,  that  no  hand  shall  be  required 
to  work  for  a  less  time  than  seven  hours  nor  a  longer 
time  than  ten  hours  in  any  one  day.  Any  person  sum- 
moned as  aforesaid  who  shaU,  by  twelve  o'clock  of  the 
day  preceding  the  one  appointed  for  work  on  the  road, 
pay  to  the  overseer  the  sum  of  one  dollar  shall  be  relieved 
from  working  on  the  road  for  one  day.  The  money  thus 
collected  by  the  overseer  shall  be  by  him  applied  on  the 
working  and  repairing  of  the  road:  Provided,  further, 
that  any  person  who  shall  furnish  one  able-bodied  hand 
as  a  substitute,  with  the  implement  directed,  shall  be 
held  to  have  complied  with  this  chapter. 

Sec.  2020.  Failure  to  attend  and  work  misdemeanor;  fine 
and  costs.  K.  C„  c.  101,  s.  11.  1817,  c.  935,  s.  2. 
1825,  c.  1287.     1879,  c.  82,  s.  6. 

Any  person  liable  to  work  on  the  road  who  shaU  fail 
to  attend  and  work  as  hereinbefore  provided  when  sum- 
moned so  to  do,  unless  he  shall  have  paid  the  one  dollar 
as  aforesaid,  shall  be  guilty  of  a  misdemeanor,  and  fined 
not  less  than  two  dollars  nor  more  than  five  dollars,  or 
imprisoned  not  exceeding  five  days,  or  both,  and  if  any 
defendant  shall  be  unable  to  discharge  the  judgment  and 
costs  that  may  be  recovered  against  him,  the  costs  shall 
be  paid  by  the  county. 

State  V.  Cauble,  70—63;  State  v.  James,  74—893;  State  v.  Luther,  77— 
493;  State  V.  Craige,  81—588;  State  v.  Craige,  83—668. 

Sec.  2021.  Overseers  to  report  to  board  of  supervisors; 
report  to  be  verified;  warrant  to  issue  ag^ainst  road 
hand  failing  to  perform  duty.  1879,  e.  82,  s.  7.  1880, 
c.  30,  s.  4. 

Every  overseer  shall  M  each  and  every  meeting  of  the 
board  of  supervisors  of  his  township  make  report  to  them 
of  the  present  condition  of  his  road,  of  the  number  of 
days  worked  on  his  section  since  last  meeting,  of  the 
number  of  hands  who  attended  and  worked  each  day,  of 
the  number  and  names  of  hands  who  failed  to  attend 
and  work;  whether  or  not  they  were  legally  summoned, 
and  whether  or  not  they  paid  the  one  dollar  as  provided. 
The  said  overseer  shall  before  some  person  authorized  to 
administer  an  oath  make  written  affidavit  that  the  report 
is  true  and  correct.  Upon  this  report  sworn  to  as  afore- 
said, if  it  shall  appear  that  any  of  the  hands,  after  being 
legally  summoned,  have  failed  to  attend  and  work  on 


Chap.  50.]    ROADS,  FERRIES  AND  BRIDGES.       777 
•.:i      .,;!   nr.ri  that  thpv  did  iiot  pav  the  one  dollar,  thea 

™t  to  the  boaS  oAupervisors,  that  they  may  not 
pS  another  prosecution  for  the  same  offence.        . 
q^r.  ^022    Overseers  to  report  all    moneys   collected  to 
''"  ^peTvls^rsriilure  to  discUarge  duties    misdemeanor; 
duty  of  chairman  of  board  of  supervisors.     1879,  c.  »-, 

The^Wd  overseers  shall  at  the  meeting  <^J^IfP^^^ 

npqro  of  an  adioinin?  township,  who  shall  immeaiaieiy 

FssJfeWs  warrant  forihe  arrest  of  the  said  overseer,  and 

proceed  to  try  him  for  the  offence. 

Sec  2023.  Jurisdiction  of  supervisors  oyer  «*jt^«y^; 
jurisdiction  of  board  of  county  commissioners  over 
roads ;  proviso;  appeal.    1879,  c.  »-.,  s.  ^.  ,   „  ^„f 

The  board  of  supervisors  shall  have  the  right  to  lay  out 
and disconl'uecirtways,  and theboard of  commis^^^^ 
of  the  county  only  shall  have  the  right  to  lay  out  ana 
establish  and^  discontinue  pubhc  roads  :  Provided,  that 
Slayng^tand  establishing  f^^s  and  cartways  and 
for  the^urpose  of  assessing  damage  ^o  p  ope^ty^y 
reason  of  the  same,  no  greater  number  of  imoij  than 
five  shall  be  summoned  or  be  required^  Sp  deS^^  °^ 
ther,  that  either  party  may  appeal  ^ X.  ^J^^gTone^s  of 
the  board  of  supervisors  to  the  board  of  commissioneis  ot 

the  county. 

State  V.  Purify,  86-681. 


778       ROADS,  FERRIES  AND  BRIDGES.     [Chap.  50. 

Sec.  2024.  Board  of  supervisors  to  report  to  superior 
court ;  clerk  to  deliver  report  to  foreman  of  grand 
jury;   misdemeanor;  punishment.     1879,  c.  82,  s.  lO. 

The  board  of  supervisors  shaU  annually  make  report  to 
the  first  term  of  the  superior  court  of  their  county 
after  the  first  Monday  in  August  of  the  condition  of  the 
roads  of  then-  township,  and  if  the  meetings  provided  for 
m  this  chapter  have  been  held  by  said  board,  the  judge 
holdmg  such  term  of  the  superior  court  shall  after  his 
charge  to  the  grand  jury  and  before  they  shall  retire  to  their 
room  call  upon  the  clerk  of  the  court  for  such  reports 
and  they  shall  then  and  there  be  delivered  to  the  foreman 
of  the  grand  jury;  and  if  any  board  of  supervisors  shall 
tail  to  make  said  report  or  to  discharge  any  other  duty 
imposed  by  this  chapter,  they  shall  be  guilty  of  a  misde- 
meanor, and  on  conviction  thereof  shall  be  fined  or 
imprisoned,  or  both,  in  the  discretion  of  the  court  and 
the  indictment  may  be  either  against  the  board  of 
supervisors,  or  against  the  individuals  composing  it  as 
•  justices  of  the  peace. 

Sec.  2025.  Width  of  roads,  causeways,  bridges ;  proviso. 
K.  C,  c.  101,  s.  14.  1784,  c.  227,  s.  2.  1880,  c.  30. 
s.  6. 

AU  roads  except  such  as  are  causewayed  or  tlirough 
cuts  shall  be  not  less  than  eighteen  feet  wide,  clear  of 
trees,  logs  and  other  obstructions  to  the  passage  of 
ordinary  vehicles,  and  there  shaU  be  ten  feet  in  width  in 
the  centre  of  the  roadway,  clear  of  stumps  and  runners 
Where,  by  the  overseers,  it  may  be  deemed  expedient  to 
make  or  repair  causeways  on  the  same,  they  shall  be  at 
least  fourteen  feet  wide ;  and  earth,  necessary  to  raise 
or  cover  them,  shall  be  taken  from  either  hand,  so  as  to 
form  a  drain  on  each  side  of  the  causeway ;  and  they 
shall  make,  of  the  same  width,  necessary  bridges  through 
swamps  and  over  small  streams  of  water :  Provided 
this  section  shall  not  apply  to  the  roads  in  those  counties 
where  there  is  bylaw  a  classification  of  the  widths  of  the 
roads. 

Small  V.  Eason,  11  Ired.,  94 ;  Collms  v.  Creecy.  8  Jon.,  333. 

Sec.  2026.  Overseers  may  apportion  road  among  hands 
but  still  liable  for  default.    K.  C,  c.  101.  s.  13      1784. 

c.  227,  s.  10.  ' 

The  overseer,  if  requested  by  a  majority  of  the  hands 
on  the  road  assigned  him,  may,  in  his  discretion,  lay  off 
the  road  m  equal  portions  for  the  convenience  of  the 


Chap.  50.]    ROADS,  FERRIES  AND  BRIDGES.        7Y9 
^Ur^   cViill   fini'^h  his   or  their  part  in  a  time 

tZ'^Sl^bytATrTotL.  Persons,  and  by 

J^vrlfdt.afnSmg"n?f  Bsec?ron*all  bs  a  defence 
t  Se  ovei'fr,  len-pmsecuted  to-  default  coneemmg 
the  condition  of  the  road. 

Forbes  v.  Hunter,  1  Jon.,  231. 

OvpVseers  may  lawfully  cut  poles  and  other  necessary 
from  any  adjomnig  land. 

Collins  V.  Creecy,  8  Jon.,  333. 
Sec  2028.  Owners  may  petition  board  of  commissioners. 
%   re   101  s.  16.    1818,  c.  976,  s.  2. 

The  owner  of 'the  land  or  timber  thus  "sed  may  ffle  his 

?,StTn?n^^'Stn:?rd-rdr^^^^^^^^^ 

island  to  Wilmington. 
Collins  V.  Creecy,  8  Jon.,  333. 

sec   2039.  Footways  and    hollow    bridges   ^^f «  J»^«J« 
^^^-p^ervisors  may  order;  their  oMe^^^^^^^^^^^ 

E^v^y  owsef;  of  the  rokd,  when  the  township  board 
of  ™-viIors  n  ay  so  direct,  shaU  cause  to  be  made  and 
wTn  repLir  for  the  convenience  of  travelers  on  foot 


780       EOADS,  FEREIES  AND  BRIDGES.    [Chap.  50. 

commonly  used,  for  the  space  of  ten  years  next  preced- 
ing any  period  within  three  years  before  presentment 
made  or  indictment  found  for  want  of  such  footways  or 
hand-rails,  the  same  shall  be  conclusive  evidence  of  an 
order  theretofore  made  by  the  board,  that  they  shall  be 
erected  and  kept  up,  subject  to  be  rebutted  only  by  pro- 
ducing an  order  dispensing  with  them  made  within  three 
years  next  before  such  presentment. 

Smith  V.  Harkins,  3  Ireri.  Eq.,  613. 

Sec.  2030.  Sign-posts  at  forks  of  roads  to  be  set  up  by 
overseers;  penalty  for  neglect.  K,  C,  c.  101,  s.  18. 
1784,  c.  227,  s.  11.     1812,  c.  846. 

Overseers  shall  cause  to  be  set  up,  at  the  forks  of  their 
respective  roads,  a  post  or  posts,  with  arms  pointing  the 
way  of  each  road,  with  plain  and  durable  directions  to 
the  most  public  places  to  which  they  lead,  and  with  the 
number  of  miles  from  that  place  as  near  as  can  be  com- 
puted; and  every  overseer  who  shall,  for  ten  days  after 
notice  of  his  appointment,  neglect  to  do  so  and  to  keep 
the  same  in  repaii-,  shall  forfeit  and  pay  for  every  such 
neglect  ten  dollars. 

State  V.  Nicholson,  3  Mur.,  135. 

Sec.  2031.  On  persons  removing  or  defacing  postsor  mile- 
marks.  R.  C,  c.  101,  s.  19.  1784,  c.  227,  s.  11. 
1812,  c.  846. 

Any  person,  who  shall  wantonly  remove,  knock  down, 
or  deface  the  said  posts,  arms,  or  any  mile-mark,  shall, 
for  every  such  offence,  forfeit  and  pay  to  the  state  ten 
dollars,  and  be  guilty  of  a  misdemeanor. 

Sec.  2032.  Overseer  to  measure  and  mile-mark  roads. 
B.  C,  c.  101,  s.  20.     1784,  c.  227,  s.  12. 

Every  overseer  of  a  road  shall  cause  the  same  to  be 
exactly  measured,  where  it  has  not  already  been  done, 
and  at  the  end  of  each  mile,  shall  mark  in  a  plain,  legible, 
and  durable  manner,  the  number  of  the  miles,  beginning, 
continuing,  and  marking  the  numbei's  in  such  manner 
and  form  as  the  board  of  supervisors  shall  direct;  and 
every  overseer  shall  keep  up  and  repair  such  marks  and 
numbers  of  his  road.  If  an  overseer  shall  neglect  any  of 
the  duties  prescribed  in  this  section,  for  the  spo.ce  of 
thirty  days,  after  his  appointment  to  office,  he  shall  for- 
feit and  pay  four  dollai-s,  and  the  like  sum  for  every 
thirty  days  thereafter  the  said  marking  may  be  neg- 
lected. 


Chap.  50.]    EOADS,  FERRIES  AND  BRIDGES.       781 

Sec.  2033.  Penalty  on  overseer  for  general  neglect  of 
duty.    K.  C,  c.  101,  s.  21.     1784,  c.  227,  s.  14. 

Every  overseer  who  shall  neglect  to  do  any  other  dnty, 
by  this  chapter  directed  to  be  done,  or  who  shall  not 
keep  the  roads  and  bridges  cleai'  and  in  repair,  or  shall 
let  them  remain  uncleared  or  out  of  repair,  during  the 
space  of  ten  days,  unless  hindered  by  extreme  bad  weather, 
shall  forfeit  for  every  such  offence  four  dollars,  and  be 
liable  for  such  damages  as  may  be  sustained:  Provided, 
that  nothing  in  this  section  shall  excuse  any  neglect  of 
duty  by  an  overseer,  as  the  same  is  prescribed  in  any 
other  part  of  this  chapter. 

Sec.  2034.  Board  of  supervisors,  &c.,  to  erect  bridges  at 
county  expense.  K.  C,  c.lOl,  s,  22.    1784,  c.  227,  s.  6. 

When  a  bridge  shall  be  necessary,  and  the  overseer 
with  his  assistants  cannot  conveniently  make  it,  the 
township  board  of  supervisors,  with  the  concurrence  of 
the  board  of  county  commissioners,  shall  contract  for  the 
building,  keeping  "and  repairing  thereof,  provided  the, 
cost  of  the  same  does  not  exceed  five  hundred  dollars,  and 
the  same  shall  be  a  charge  on  the  county;  and  when 
bridges  shall  be  necessary  over  any  stream  which  divides 
one  county  from  another,  the  commissioners  of  each  shall 
join  in  agreement  for  building,  keeping  and  repairing  the 
same,  provided  the  cost  of  the  same  does  not  exceed  five 
hundred  dollars;  and  the  charge  thereof  shall  be  defrayed 
by  both  counties,  in  proportion  to  the  number  of  taxable 
polls  in  each. 

State  V.  Selby,  83—617. 

Sec.  2035.  Contracts  to  build  bridges  binding  on  county. 
K.  C,  c.  101,  s.  23.     1784,  c.  227,  s.  6. 

Every  contract  and  order  by  the  boards  of  township 
supervisors  and  county  commissioners  entered  into  or 
made  as  authorized  by  this  chapter  for  or  concerning  the 
building,  keeping  or  repairing  bridges,  in  such  manner  as 
to  them  may  seem  most  proper,  shall  be  vahd  against  the 
county. 

Sec.  2036.  Owners  of  mills  and  ditcbes  on  and  across 
roads  to  keep  up  bridges;  provisos.  K.  C,  c.  lOl,  s. 
24.  1817,  c.  941,  s.  1.  1846,  c.  95,  s.  1.  1881,  c. 
290. 

It  shaU  be  the  duty  of  every  owner  of  a  water-mill, 
which  is  situate  on  any  public  road,  and  also  of  every 
person  who,  for  the  purpose  of  draining  his  lands,  or  for 


Y82       EOADS,  FEEEIES  AND  BEIDGES.     [Chap.  50. 

any  other  purpose,  shall  construct  any  ditch,  drain  or 
canal  across  a  pubhc  road,  respectively,  to  keep  at  his 
own  expense  in  good  and  sufficient  repair,  all  bridges  that 
are  or  may  be  erected  or  attached  to  his  mill  dam,  im- 
mediately over  which  a  public  road  may  run;  and  also  to 
erect  and  keep  in  repair  all  necessary  bridges  over  such 
ditch,  drain  or  canal  on  the  highway,  so  long  as  they 
may  be  needed  by  reason  of  the  continuance  of  said  mill, 
or  miU  dam,  ditch,  drain  or  canal:  Provided,  that  noth- 
ing herein  shall  be  construed  to  extend  to  any  mill  which 
was  erected  before  the  laying  off  such  road,  unless  the 
road  was  laid  off  by  the  request  of  the  owner  of  the  miU: 
Provided  further,  that  the  duty  hereby  imposed  on  the 
owner  of  the  mill,  and  on  the  person  cutting  the  drain  or 
canal,  shall  continue  on  all  subsequent  owners  of  the 
mill,  or  other  property,  for  the  benefit  of  which  the  said 
ditch,  drain  or  canal  was  cut:  Provided  also,  that  when 
any  ditch  or  drain  originally  constructed  across  any  pub- 
lic road,  and  bridged  for  the  convenience  and  safety  of 
the  traveling  public,  has  been  or  may  hereafter  be  en- 
larged by  the  owner  of  adjacent  lands  to  drain  his  lands, it 
shaU  be  the  duty  of  such  owner  to  keep  up  and  in  repair 
all  bridges  crossing  such  ditch,  drain  or  canal,  and  that  such 
charge  shall  be  imposed  upon  all  subsequent  owners  of 
the  lands  so  drained,  and  that  any  person  throwing  a 
bank  of  dirt  in  the  main  road  shall  be  compelled  to  spread 
the  same. 

MulhoUand  v.  Brownrigg,  2  Hawks,  349;  State  v.  Yarrell.,  12  Ired.,130; 
Nobles  V.  Langly,  66—287;  State  v.  Jones,  74—393. 

Sec.  3037.  Penalty  for  neglect.    K.  C,  c.  101,  s.  25.  1817, 
0.941,8.3.     1876-'7,  C.90.     1876-'7,  c.  311. 

Every  person,  who  shall  fail  to  perform  the  duties  im- 
posed upon  him  by  the  preceding  section,  or  shall  leave 
out  of  repair  any  such  bridge,  for  the  space  of  ten  days, 
unless  prevented  by  unavoidable  circumstances,  shall  be 
hable  for  such  damages  as  may  be  sustained,  and  more- 
over shall  be  guilty  of  a  misdemeanor,  and  fined  not  ex- 
ceeding fifty  dollars. 

Sec.  3038.  Ferries  and  roads,  how  established,  altered  or 
discontinued.    R.  C,  c.  101,  s.  3.    1813,  c.  863,  s.  1. 

The  board  of  county  commissioners  shall  not  establish 
any  ferry,  or  order  the  laying  out  of  any  public  road,  or 
discontinue  or  alter  such  road  or  ferry,  unless  upon  peti- 
tion in  writing.  And  unless  it  appear  to  the  board  that 
every  person,  over  whose  lands  the  said  road  may  pass, 


Chap.  50.]    EOADS,  FEREIES  AND  BRIDGES.        783 

or  whose  ferry  shall  be  within  two  miles  of  the  place  at 
which  another  ferry  is  prayed  to  be  established,  shall 
have  had  twenty  days' notice  of  the  intention  to  file  such 
petition,  the  same  shall  be  filed  in  the  office  of  the  clerk 
of  the  board  until  the  succeeding  meeting  of  the  board, 
and  notice  thereof  be  posted  during  the  same  period  at 
the  court  house  door;  at  which  meeting  the  board  shall 
hear  the  allegations  set  forth  in  the  petition;  and  if  suf- 
ficient reason  be  shown,  the  board  shall  appoint  and  set- 
tle or  discontinue  the  said  ferry,  or  order  the  laying  out, 
or  discontinue  or  alter  the  said  road,  as  the  case  may  be. 

CaiTV.  Hairston,  1  C.  L.  Repos.,  349;  Harris  v.  Coltraine,  3  Hawks, 
313;  Little  v.  May,  3  Hawks,  599;  State  v.  Spaiuhour,  3  D.  &.  B.,  547; 
Woolard  v.  McCullough,  1  Ired.,  443;  Pieicy  v.  Morris,  2  Ired.,  168;  Leath 
V.  Summers,  3  Ired.,  108;  State  v.  Shuford,  6  Ired.,  162;WeIch  v.  Piercy,  7 
Ired.,  365;  Davis  v.  Hill,  11  Ired.,  9. 

Sec.  2039.  Board  may  order  how  costs  shall  be  paid;  ap- 
peal; controversies  concerning  roads,  &c.,  carried  by 
appeal  to  superior  court  to  be  tried  before  jury.  K,  C., 
c.  101,  s.  3.     1813,  c.  862,  s.  1.     1879,  c.  268. 

_  In  all  applications  provided  for  in  the  preceding  sec- 
tion, the  board  of  county  commissioners  may  direct  how 
and  by  whom  the  costs  shall  be  paid;  and  any  person  may 
appeal  to  the  superior  court  at  term  time,  and  if  any  per- 
son shall  appeal  from  the  board  on  such  petition,  he  shall 
give  bond  to  the  opposing  party  as  provided  in  other 
cases  of  appeal,  and  the  superior  court  at  term  shall  hear 
the  whole  matter  anew;  and  where  any  proceeding  is  in- 
stituted to  lay  out,  estabhsh,  alter  or  discontinue  public 
roads  or  to  appoint  and  settle  ferries,  and  the  said  proceed- 
ing  is  carried  to  the  superior  court  in  term  time  by  ap- 
peal or  otherwise,  the  parties  to  said  proceeding  shall  be 
entitled  to  have  every  issue  of  fact  joined  in  said  pro- 
ceeding tried  in  the  superior  court  in  term  time  by  jury, 
and  from  the  judgment  of  the  superior  court  either  party 
may  appeal  to  the  supreme  court  as  is  provided  in  other 
cases  of  appeals  in  this  code. 

Ashcraft  v.  Lee,  79—34. 

Sec.  2040.  Roads,  how  laid  out.  B.  C,  e.  101,  s.  4. 
1784,  c.  227,  s.  13.    1813,  c.  862,  s.  1.    1879,  c.  82, 

s.  9. 

All  roads  shall  be  laid  out  by  a  jury  of  five  freehold- 
ers, to  the  greatest  advantage  of  the  inhabitants,  and 
with  as  Little  prejudice  as  may  be  to  lands  and  enclosm-es; 
which  laying  out,  and  such  damage  as  private  persona 


784       EOADS,  FERRIES  AND  BRIDGES.     [Chap.  50. 

raav  sustain,  shall  be  done  and  ascertained,  by  the  sanae 
j5ry  on  oath;  and  all  damages  by  them  assessed  shaU  be 
deemed  a  county  charge. 

Ashcraf  t  v.  Lee,  79—34. 

sjp.-    2041.  When   road  changed,  how    received.     R.  C, 
c.l01,s.5.    1784,  c.  337,  s.  13.    1813,  c.  863,  s.  1. 

Whenever,  upon  petition  of  any  person,  a  road  shall  be 
changed  and,  as  a  condition  thereof,  it  shall  be  requu-ed 
bv  the  board,  that  he  put  the  proposed  road  in  good  con- 
dition, he  may,  at  anytime  thereafter,  tender  the  same  to 
the  overseer,  who  shall  receive  it,  if  it  be  in  such  condition 
as  is  required  for  highways;  and  if  not,  shall  reject  it; 
and  in  either  case  he  shall  report  and  certify  the  fact  to 
said  board  where  the  same  may  be  considered;  and  said 
board  shall  hear  all  persons  interested  in  the  matter  of  re- 
ceiving or  rejecting  the  road;  and  the  decision  of  the 
board  shall  be  conclusive  as  to  the  condition  ot  the  road; 
but  the  old  road  shall  not  be  closed  until  it  be  discon- 
tinued by  order  of  the  board. 

Sec    3043.  How  persons  may  turn  roads  on  their   own 
lands.    K.  C,  c  101,  s.  6.    1834,  c.  33. 

In  addition  to  the  mode  prescribed  in  the  preceding 
section,  for  turning;  roads,  the  foUowing  method  may  be 
observed  by  any  one  who  desires  to  change  a  road  from 
one  part  of  his  land  to  another  part,  namely:  Such  per- 
son shall  lay  out  the  same,  and  after  putting  it  in  such 
good  condition  as  highways  are  directed  to  be,  shall  apply 
to  a  iustice  of  the  peace,  who  thereupon  shall  notify  the 
overseer  of  the  road,   and  summon  two  freeholders  to 
meet  on  the  premises  at  a  given  day;  and  the  said  tree- 
holders,  being  duly  sworn,  shall,  with  the  justice,  view 
and  examine  carefully  the  road  which  is  proposed  in 
place  of  the  other,  and  all  matters  and  facts  tending  to 
show  whether  the  change    should  be  allovyod.     Ihey 
shall  report  in  writing  subscribed  by  them  the  result  of 
their  consideration  to  the  next  meeting  of  the  board  of 
supervisors,  which  may  confirm  or  reject  their  report: 
Provided,  that  such  justice  and  freeholders  shall  be  dis- 
interested in  the  land,  and  not  of  km  or  affinity  to  the 
applicant. 

state  V.   Spaiabour,  2  D.  &  B.,  547;  Galling  v.  Livcrman,  1  Ired.,  68; 
Kennedy  v,  Erwin,  Busb..  387;  Brodnax  v.  Groom.  64—344, 


Chap.  50.]    ROADS,  FERRIES  AND  BRIDGES.       785 

Sec.  2043.  Board  of  supervisors  in  ten  days  to  furnish 
constable  with  orders  appointing  overseers;  constable 
to  apply  to  board  for  orders,  and  serve  them  within 
twenty  days,  penalty  on  board  and  constable  for  neg- 
lect.   B.  C,  c.  lOl,  s.  8.    1813,  c.  845,  ss.  1,  2.    1813, 
c.  859,  ss.  1,  2. 
The  board  of  supervisors  of  the  township,  within  ten 
days  after  the  rise  of  the  board,  shall  furnish  the  con- 
stable with  two  copies  of  each  order  appointing  overseers 
of  roads,  that  may  have  been  made  during  the  sitting  of 
the  board      And  the  constable  shaU  apply  at  the  office  ot 
the  board   within  ten  days  after  the  rise  of  every  meet- 
ing of  the  board  for  such  orders,  and,  on  receiving  them, 
shall  within  twenty  days,  serve  each  overseer  of  roads 
with'a  copy  of  the  order,  or  leave  the  same  at  his  usual 
habitation;  and  the  other  copy  shall  be  returned  to  the 
next  meeting  of  the  board  of  supervisors,  with  the  date 
of  its  reception  by  him,  and  the  date  of  the  service,  in- 
dorsed thereon,  or  the  date  when  it  was  left  at  the  resi- 
dence of  the  said  overseer.     And  if  either  the  board  or 
constable  shall  fail  to  perform  any  duty  enjoined  by  this 
section  he  shall  forfeit  ten  dollars  to  the  county,  to  be 
recovered  at  any  time,  by  notice  to  show  cause  at  the  in- 
stance of  the  solicitor,  who  shall  prosecute  the  same  m 
the  name  of  the  state. 
Hathaway  v.  Hinton,  1  Jon.,  245. 

Sec.  2044.  Notice,  how  served.    R.  C,  c.  101,  s.  10.    1842, 

c.  65. 

When  an  overseer  shall  not  be  able  to  personally  notify 
the  hands  three  days  before  the  day  appointed  for  work- 
ing the  road,  he  shall  leave  at  the  house  of  each  hand  a 
written  summons,  specifying  the  day  on  which  they  are 
required  to  attend,  the  place  of  the  road  to  be  worked, 
and  the  kind  of  tools  to  be  brought  or  used;  and  the  said 
written  summons,  left  as  aforesaid,  shall  be  deemed  suf- 
ficient notice  to  the  hands  required  to  be  notified;  and 
all  penalties  recovered  by  an  overseer,  for  default  of 
working  on  the  road,  shall  be  apphed  by  him  to  the  re- 
pair of  the  road  of  which  he  is,  or  may  have  been  over- 
seer. 

state  V.  Everit,  2  C.  L.  Kepos.,  633;  Forbes  v.  Hunter,  1  Jon.,  231. 

Sec.  2045.  Toll-bridges  allowed  by  board  of  commission- 
ers, when;  builders  to  keep  them  in  repair,  or  forfeit 
toll  and  be  indicted.  R.  C,  c.  101,  s.  26.  1784,  c. 
227,  s.  7.     1817,  c.  939,  s.  2.     1817,  c.  940,  s.  3. 

Whenever,  from  the  rapidity  or  width  of  any  stream. 


786       EOADS,  FERRIES  AND  BRIDGES.     [Chap.  50. 

it  may  be  too  burdensome  to  build  aud  keep  up  a  bridge 
across  the  same,  at  the  expense  of  those  who  are 
taxable  for  that  purpose,  the  board  of  commissioners  of 
the  county,  or  counties,  chargeable  therewith,  may 
jointly  and  severally  (as  the  case  may  be)  contract  for  the 
building  thereof,  by  allowing  the  builder  to  take  tolls,  at 
such  rate  and  for  such  time,  on  all  persons,  horses,  car- 
riages, and  other  things  passing  over  the  bridge,  as  may 
be  agreed  on  between  the  board  of  commissioners  and 
the  builder;  which  tolls  shall  be  common  to  all  persons. 
And  such  bridges  shall  be  built  in  the  manner  the  board 
or  boards  may  direct,  and  shall  be  kept  in  good  repair  by 
the  builder,  his  heirs  and  assigns,  during  the  time  the 
toUs  are  to  be  enjoyed;  and  in  default  of  complying  with 
the  contract,  the  builder,  or  others  who  may  succeed  to 
his  rights  and  enjoy  the  tolls,  shall  be  guilty  of  a  misde- 
meanor. 

Smith  V.  Harkins,  3  Ired.  Eq. ,  613. 

Sec.  204:6.  Tolls  of  ferry  regulated  by  board  of  commis- 
sioners; penalty  for  refusing  to  keep  it  up.  R.  C.,  c. 
101,  s.  37.  1779,  c.  10,  s.s.  8,  9.  Ired.  Bev.,  c.  160, 
s.  2,  new  Bev. 

The  board  of  commissioners  of  each  county  shall,  once 
a  year,  or  oftener  if  necessary,  at  the  meeting  to  be  held 
next  after  the  first  day  of  January,  rate  the  prices  of 
such  ferries  as  shall  be  kept  within  their  respective  coun- 
ties; and  any  ferry  keeper  who  shall  ask,  demand,  or 
receive  a  greater  price  for  ferriage  than  shall  be  rated 
by  the  board  of  commissioners,  shall  forfeit  and  pay 
five  dollars  for  every  offence  to  the  party  aggrieved. 
And  every  person  who  owns  a  public  ferry,  and  refuses 
to  keep  it  up  at  the  rates  allowed  by  the  board,  shall  for 
every  such  offence  forfeit  five  dollars. 

Smith  V.  Harkins,  6  Ired.  Eq.,  613. 

Sec.  2047.  Owner  may  build  toll-bridge  at  his  ferry;  draw- 
bridge, when  made.  B.  C,  c.  101,  s.  28.  1806,  c. 
700. 

In  aU  cases,  where  the  proprietor  of  a  ferry  shall  prefer 
building  a  good  and  substantial  bridge  over  any  water 
course  instead  of  keeping  a  ferry,  he  may  do  so;  and  may 
claim  and  hold  such  bridge  under  the  same  rights,  and 
in  the  same  manner,  by  which  the  ferry  is  claimed  and 
held,  and  under  the  same  rules,  regulations,  resti-ictions 
and  penalties  as  other  toll -bridges:  Provided,  that  no 
more  toll  shaU  be  demanded  for  passing  any  such  bridge 


Chap.  50.]    KOADS,  FERRIES  AND  BRIDGES.       T87 

than  is  granted  by  law  for  the  ferriage,  unless  by  agree- 
ment with  the  board  of  commissioners:  Provided  further, 
that,  in  all  such  bridges,  the  proprietor  shall  erect  a 
draw,  where  the  free  navigation  of  the  stream  may 
I'equire  it. 

Smith  V.  Harkins,  3  Ired.  Eq.,  613;  Lea  v.  Johnston,  9  Ired.,  15;  Davis 
V.  Jerkins,  5  Jon. ,  290. 

Sec.  2048.  Bonds  of  owners  of  ferries  and  toll-bridges  to 
be  taken  by  board  of  commissioners;  persons  injured 
may  recover  damages.    B.  C,  c.  101,  s.  29.    1784,  c. 

227,  s.  15. 
The  board  of  commissioners  of  each  county  shall  com- 
pel every  person  that. may  own  a  toll-bridge,  or  keep  a 
public  ferry,  within  the  county,  to  give  bond  with  good 
sm-ety,  in  the  sum  of  one  thousand  dollars,  payable  to 
the  state  of  North  Carolina,  conditioned  that  he  will  con- 
stantly keep  such  bridge  in  good  repair,  or,  as  the  case 
may  be,  provide  and  keep  good  and  sufficient  boats,  or 
other  proper  craft,  always  to  be  well  attended,  for  the 
passing  of  travelers  or  other  persons,  their  horses,  car- 
riages and  effects;  and  will  indemnify  and  save  harmless 
every  person  who  may  be  endamaged,  by  reason  of  any 
default  in  his  undertaking.  And  if  any  person  shall  re- 
ceive damage,  because  such  ferryman  or  keeper  of  a  toll- 
bridge  shah  not  have  complied  with  the  conditions  of  his 
bond,  he  may  bring  suit  thereon  in  the  name  of  the  state, 
and  recover  his  damages.  And  if  any  person  shall  be  de- 
tained at  any  public  ferry,  by  reason  of  the  ferryman  not 
having  sufficient  boats  or  other  proper  crafts  and  hands, 
or  by  his  neglecting  to  do  his  duty  in  any  other  lespect, 
he  may  recover  before  a  justice  of  the  peace,  against 
such  ferryman,  the  sum  of  ten  dollars,  as  a  penalty  for 
every  such  default  or  neglect. 

Sec.  2049.  Penalty  for  keeping  ferry,  &c.,  without  autho- 
rity; proviso  for  mail  carriers.  B.  C,  c.  101,  s.  30. 
1764,  c.  72,  s.  1.     1787,  c.  273.    1883,  c.  381. 

If  any  unauthorized  person  shall  pretend  to  keep  a 
ferry  or  to  transport  for  pay  any  person  or  his  effects, 
within  five  miles  of  any  ferry  on  the  same  river  or  water, 
whicli  theretofore  may  have  been  appointed,  he  shall  for- 
feit and  pay  two  dollars  for  every  such  offence,  to  the 
nearest  ferryman:  Provided,  that  any  person  who  may 
contract  for  carrying  the  mail,  may  keep  a  boat  for  the 
sole  purpose  of  transporting  the  same,  and  such  passen- 
gers as   may   travel  in  the  coach  therevk'ith,  across  any 


788       KOADS,  FERRIES  AND  BRIDGES.     [Chap.  50. 

ferry;  but  such  contractor  shall  not  transport  across 
such  ferry  any  other  passengers  than  such  as  travel  by  the 
coach. 

Taylor  v.  R.  R.  Co.,  4  Jon.,  277;  Carrow  v.  Toll  Bridge  Co.,  Phil.,  118; 
Pugli  V.  R.  R.  Co.,  Phil.,  359;  Barrington  v.  Ferry  Co.,  69—165. 

Sec.  2050.  Fastening  vessels  to  float-bridge;  penalty. 
K.  C,  c.  101,  s.  31.  B,  S.,  c.  104.  1858-'9,  c.  58, 
s.  1. 

No  person  shall  fasten  any  decked  vessel  to  a  float 
bridge,  on  pain  of  forfeiting  fifty  dollars;  which  in  the 
case  of  a  bridge  that  crosses  a  county  hne,  may  be  re- 
covered in  either  county. 

Sec.  2051.  Railroad  companies  to  keep  draws  in  bridges. 
K.  C,  c.  101,  s.  32.     1846,  c.  51,  ss.  1,  2. 

Railroad,  plank-road,  and  turnpike  companies,  erecting 
bridges  across  vi^ater  courses,  shall  attach  and  keep  up 
good  and  sufficient  draws,  by  which  vessels  may  be  al- 
lowed conveniently  to  pass. 

Sec.  2052.  Owners  of  steamboats,  &c.,  to  notify  owners  of 
bridges  to  construct  draws;  penalty  for  neglect.  K.  C, 
c.  101,  s.  33.    1864,  c.  51,  ss.  1,  2. 

Owners  of  steamboats  or  other  craft,  who  may  intend 
to  navigate  any  river  or  creek  over  which  any  person 
may  have  a  bridge,  may  give  three  months'  notice  thereof 
in  one  of  the  pubhc  journals  of  the  state,  published  near- 
est the  river  or  creek  intended  to  be  navigated,  and  to 
the  owner  of  said  bridge,  to  construct  a  draw  of  sufficient 
width  to  allow  the  passage  of  the  boat  which  is  to  be 
used;  and  if  the  owner  of  said  bridge  shah  not,  within 
three  months  from  the  date  of  the  notice,  construct  the 
required  draw,  he  shall  forfeit  and  pay  the  person  so  not- 
ifying, if  he  be  thereby  prevented  from  navigating  the 
water  course,  fifty  dollars;  and  shall  be  further  subject  to 
the  like  penalty,  under  like  circumstances,  for  every 
three  months'  default  thereafter. 


Sec.  2053.  Counties  to  erect  draws  where  necessary.    B. 
C,  c.  101,  s.  34. 

The  county  or  counties  which  may  erect  bridges  shall, 
by  their  boards  of  commissioners,  provide  and  keep  up 
draws  in  all  such  bridges,  where  the  same  may  be  neces- 
sary to  aUow  the  convenient  passage  of  vessels. 


Chap.  50.]    EOADS,  FERRIES  AND  BRIDGES.        789 

Sec.  2054.  Kailroad  companies,  &c.,  to  keep  bridges  over 
county  roads;  penalty  for  failure.  B.  C,  c.  101,  s.  35. 
1838,  c.  5,  ss.  1,  2,  3,  4. 

Railroad,  plank-road,  and  turnpike  companies,  each, 
shall  keep  up,  at  their  own  expense,  all  bridges  on  or 
over  county,  or  incorporated  roads,  which  they  have  sev- 
erally made  it  necessary  to  be  built,  in  establishing  their 
respective  roads;  and  on  failure  to  do  so,  shall  be  guilty 
of  a  misdemeanor,  and  fined;  and  execution  may  issue 
for  fine  and  costs;  and  shall  forfeit  and  pay  twenty -five 
dollars  to  any  person  who  may  sue  for  the  same. 

State  V.  R.  R.  Co.,  74—143. 

Sec.  2055.  Duty  of  solicitors  to  pi-osecute  for  in.iuries  to 
bridges.    K.  C,  c.  lOJ,  s.  36.    1846,  c.  11,  ss.  1,  2. 

The  solicitors  of  the  superior  court  are  authorized  and 
directed  to  institute  suits  in  the  name  of  the  state,  in  the 
counties  wherein  the  injuries  may  be  done,  for  the  re- 
covery of  damages,  against  all  persons,  who  shall  wilfully 
or  negligently  injure  any  public  bridge  belonging  to  or 
situate  in  any  county  or  counties,  by  forcibly  running 
any  decked  vessel,  boat  or  raft  against  the  same;  by  cut- 
ting trees  or  timber  in  the  rivers  or  ci-eeks  above  such 
bridges,  or  by  any  other  manner  or  means  whatsoever. 
In  case  the  injury  is  done  to  two  counties,  the  action  may 
be  brought  in  either  for  the  entire  damage;  and  the  dam- 
ages which  may  be  recovered  shall  be  for  the  use  of  the 
county  or  counties  injured;  and  if  the  plaintiff  fail,  the 
costs  shall  be  paid  by  the  county  or  counties  for  whose 
use  the  suit  is  brought,  and  in  the  same  proportion  in 
which  the  recovery  would  be  divided. 

Sec.  2056.  Cart-way,s,  in  what  cases,  and  bow  obtained; 
proceedings  tberefor,  R.  C,  c.  101,  s.  37.  1798,  c. 
608,  s.  1.     1822,  c.  1139,  s.  1.     1879,  c.  258. 

If  any  person  be  settled  upon  or  cultivating  any  land, 
to  which  there  is  leading  no  public  road,  and  it  shall  ap- 
pear necessary,  reasonable  and  just  that  such  peison 
should  have  a  private  way  to  a  public  road  over  the  lands 
of  other  persons,  he  may  file  his  petition  before  the  boaid 
of  supervisors  of  the  township  praying  for  a  cartway  to 
be  kept  open  across  such  other  persons'  lands,  leading  to 
some  public  road,  ferry,  bridge  or  public  landing;  and 
upon  his  making  it  appear  to  the  board  that  the  adverse 
party  has  had  ten  days'  notice  of  his  intention,  the  board 
shall  hear  the  allegations  of  the  petitioner  and  the  objec- 
tions of  the  adverse  party  or  parties,  and  if  sufficient 


790       EOADS,  FERRIES  AND  BRIDGES.    {Chap.  50. 

reason  be  shown,  shall  order  the  constable  to  summon  a 
jury  of  five  freeholders,  to  view  the  premises,  and  lay  off 
a  cart-way  not  less  than  fourteen  feet  wide,  and  assess 
the  damages  the  owner  of  such  land  may  sustain  thereby; 
which,  with  the  expense  of  making  the  way,  shall  be 
paid  by  the  petitioner;  and  the  way  shall  be  kept  open 
for  the  free  passage  of  all  persons,  on  foot  or  horseback, 
carts  and  wagons:  Provided,  that,  if  the  notice  aforesaid 
shall  not  have  been  given,  the  board  shall  cause  such 
petition  to  be  filed  with  their  chairman  until  their  next 
meeting,  when  they  shall  proceed  to  hear  and  determine 
the  same,  and  the  petitioner  or  the  adverse  party  may 
appeal  from  the  order  of  the  supervisors  to  the  board  of 
commissioners  of  the  county,  and  from  the  order  of  the 
board  of  commissioners  to  the  superior  court  at  term, 
when  the  issues  of  fact  shall  be  tried  by  a  jury,  and  from 
the  judgment  of  the  superior  com-t  to  the  supreme  court, 
as  in  other  cases  of  appeal.  And  all  costs  accumulated 
after  the  order  of  the  board  of  supervisors  shall  be  paid 
by  either  party,  as  the  court  may  direct. 

Lea  V.  Johnston,  9  Ired.,  15;  Caroon  v.  Doxey,  3  Jon.,  23;  Jacoclcs  v. 
Newby,  4  Jon.,  266;  Burgwyn  v.  Lockhart,  Wiust.,  269;  Link  v.  Brooks, 
Phil.,  499;  Boyden  v.  Achenbach,  79—139;  State  v.  Purify,  86—681. 

Sec.  2057.  May  be  changed  or  discontinued  and  gates  or 
bars  erected,  &c.;  penalty  for  injuring  them.  R.  C,  c. 
lOl,  s.  38.    1798,  c.  508,  ss.  1,  3,  3.    1834,  c.  16,  s.  1. 

Cart- ways,  laid  off  according  to  the  pi'ovisions  of  this 
chapter,  may  be  changed  or  discontinued  upon  applica- 
tion by  any  person  concerned,  under  the  same  rules  of 
'proceeding  as  they  may  be  first  laid  off,  and  upon  such 
terms  as  to  the  board  of  supervisors  shall  seem  equitable 
and  just.  And  any  person  thi'ough  whose  land  a  cart- 
way may  pass,  may  erect  gates  or  bars  across  the  same; 
and  if  any  person  shall  leave  open,  break  down,  or  other- 
wise injure  such  gates  or  bars,  he  shall  forfeit  and  pay, 
for  every  such  offence,  ten  dollars  to  the  person  erecting 
the  sarhe  or  his  assigns  of  the  land;  and  if  the  offence 
shall  be  maliciously  done,  he  shall  be  guilty  of  a  misde- 
meanor. 

Lea  v.  Johnston,  9  Ired.,  15;  Jacocksv.  Newby,  4  Jon.,  266;  Plimmons 
V.  Frisby,  Winst.,  201. 

Sec.  2058.  License  to  erect  gates  across  highways,  how 
obtained.  R.  C,  c.  101.  s.  39.  1834,  c.  16,  ss.  2,  3, 
4. 

Any  person  desiring  to  erect  a  gate  aci'oss  a  public  road 


Chap.  50.1    EOADS,  FEERIES  AND  BRIDGES        791 

may  file  his  petition  before  the  board  of  supervisors  of 
the  township  where  the  road  hes;  whereupon  publication 
shall  be  made  at  the  court  house  until  the  next  succeed- 
ing meeting,  of  such  application,  specifying  the  road,  the 
place  for  the  gate  and  name  of  the  petitioner;  and  all  per- 
sons interested  in  the  convenient  traveling  or  transporta- 
tion on  said  load,  shall  have  leave  to  appear  and  defend, 
demui-,  or  plead  to  said  petition;  and  if,  at  that  meeting, 
it  shall  appear  that  such  publication  has  been  made,  the 
supervisors  may,  at  their  discretion,  authorize  the  peti- 
tioner, at  his  cost,  to  erect  a  gate  as  prayed  for. 

Sec.  2059.  Who  exempt  from  working  on  roads.    R.  C,  c. 
101,  s.  40. 

The  following  persons  shall  be  exempt  from  working  on 
roads,  namely:  justices  of  the  peace,  constables,  ferry- 
men, keepers  of  public  grist  mills,  county  commissionei-s, 
teachers  and  pupils  of  schools  and  lock-keepers  on  public 
canals. 

State  V.  Craige,  81—588. 

Sec.  2060.  Exi>enses  borne  by  whole  people  of  county, 
when.     1869-'70,  c.  219. 

The  expense  of  building  and  keeping  up  public  bridges 
in  the  several  counties  shall  be  borne  by  the  whole  peo- 
ple of  each,  and  not  by  the  people  of  the  township  sepa- 
rately, in  which  such  bridges  may  be  situated;  and  it  shall 
be  the  duty  of  the  commissioners  to  adjust  this  burden 
equally  among  the  people  of  their  respective  counties, 
and  they  shall  exercise  a  due  supervision  over  the  action 
of  the  respective  boards  of  supervisors  of  the  townships, 
so  as  to  prevent  the  board  of  any  township  from  estab- 
lishing any  unnecessary  number  of  bridges  in  their  re- 
spective townships. 

State  V.  Selby,  83—617. 

Sec.  2061.  Koad   steamers  may  run  upon   public   roads. 
1870-'71,  c.  162. 

It  shall  be  lawful  for  any  person  to  run  and  use  traction 
engines^and  road  steamers  upon  the  public  roads  in  North 
Carolina. 

Sec.  2062.  Boards  of  supervisors  to  lay  out,  &c.,  church 
roads.    1872-'3,  c.  189,  ss.  1,  5. 

The  board  of  supervisors  in  each  township  is  authorized 
to  order  the  laying  out  of  any  and  all  necessary  roads  to 
and  from  any  church  or  other  place  of  pubUc  worship  in 


792       EOADS,  FERRIES  AND  BRIDGES.     [Chap.  50. 

their  said  townships,  to  discontinue  such  roads  when  they 
may  be  found  useless,  and  to  alter  the  same  so  as  to  make 
them  moi'e  useful,  and  the  right  of  way  herein  provided 
for  shall  terminate  whenever  the  church  or  place  of  wor- 
ship shall  cease  to  be  used  as  such. 

Sec.  2063.  Petition  for  the  same.    1872-'3,  c.  189,  s.  2. 

The  said  board  of  supervisors  shall  not  order  the  laying 
out  of  any  such  road  or  discontinue  or  alter  the  same  ex- 
cept upon  petition,  in  writing,  nor  shall  they  hear  any 
such  petition,  unless  it  may  be  made  to  appear  that  every 
person  over  whose  lands  the  said  road  may  pass  shall  have 
had  ten  days'  notice  of  the  intention  to  file  such  petition, 
by  personal  service  of  notice  in  writing,  or  if  the  owner 
be  unknown  or  there  be  no  owner,  agent  or  attorney  of 
such  owner  resident  in  this  state,  then  by  notice  thereof 
posted  up  at  the  court  house  door  of  the  county  in  which 
the  township  is  situate  and  at  two  public  places  in  the 
township  for  the  space  of  ten  days;  and  upon  the  hear- 
ing of  the  petition,  if  sufficient  reason  be  shown,  the  said 
board  of  supervisors  shall  order  the  laying  out,  shall  dis- 
continue or  alter  the  said  road  as  the  case  may  be,  and 
from  their  determination  any  party  dissatisfied  may  ap- 
peal as  is  provided  in  this  chapter  in  the  section  directing 
the  laying  off  of  cart-ways. 

Sec.  2064.  Manner  of  laying  out  roads.    1872-'3,  c.  189, 
s.  3. 

All  roads  provided  for  in  the  two  preceding  sections 
shall  be  laid  out  to  the  greatest  advantage  of  the  inhab- 
itants and  with  as  little  prejudice  as  may  be  to  lands  and 
enclosures  within  twenty  days  from  the  notification  of 
their  appointment  by  five  disinterested  freeholders,  to  be 
appointed  by  the  said  board  of  supervisors;  and  such 
damage  as  any  individuals  may  sustain  shall  be  ascer- 
tained by  the  said  freeholders,  and  a  report  thereof  with 
the  proceedings  had  by  them,  shall  be  made  to  the  said 
board  of  supervisors;  and  all  damages  so  assessed  by  the 
freeholders  shall  be  paid  by  the  petitioners,  and  until 
paid  there  shall  be  no  confirmation  of  the  i-eport  of  the 
freeholders,  and  such  laying  out  shall  be  of  no  effect. 

Sec.   2065.   Obstruction   of  road,    &c.,  a  misdemeanor. 
1872-'3,  c.  189,  s.  6.     1883,  c.  383. 

If  any  person  shall  wilfully  alter,  change  or  obstruct 
any  highway,  cartway,  mill  road  or  road  leading  to  and 
from  any  church  or  other  place  of  public  worship,  whether 


Chap.  51.] 


SHERIFFS. 


Y93 


the  right  of  way  thereto  be  secured  in  the  manner  herein 
provided  for  or  "by  purchase,  donation  or  otherwise,  such 
person  shall  be  guilty  of  a  misdemeanor,  and  fined  or  im- 
prisoned, or  both. 

Any  person  who  shall  hinder  or  in  any  manner  inter- 
fere with  the  making  of  any  road  or  cartway  laid  off 
according  to  this  chapter  shall  be  guilty  of  a  misdemeanor, 
and  punished  by  fine  or  imprisonment,  or  both,  atthe  dis- 
cretion of  the  court. 

State  V.  Davis,  68—297;  Boydea  v.  Achenbach,  79—539;  State  v 
Midgett,  85—538;  State  v.  Purify,  86—681. 


CHAPTER  FIFTY-ONE. 
SHEEIPFS. 


Section. 

2066.  Board  of  countycommissioners 
to  take  bonds. 

2067.  Who  iaeligible  to  ofHce  of 
sheriff. 

2068.  Sheriff  ineligible  who  fails  to 
settle  public  dues. 

2069    Who  may  not  serve  as  sheriff. 

2070.  Sheriff  shall  renew  bonds  an- 
nually; failure,  to  create  va- 
cancy. 

2071.  Sheriff  removed  from  oiHce; 
duty  of  coroner  in  such  case. 

2072.  Coroner  to  give  bonds  and  take 
oaths  when  called  to  act  as 
sheriff. 

2073.  Bond  of  sheriff ;  form  of  bond 
for  execution  of  process. 

2074.  "When  board  to  require  a  justi- 
fication of  bonds,  &c. ;  notice 
to  sheriff;  his  failure  to  appear 
or  justify,  &c. ,  board  to  elect 
another. 

2075.  Board  of  commissioners  liable 
for  loss. 

2076.  Sureties  liable  for  fines,  &c. 

2077.  May  resign  office  to  board. 

34 


Section. 

2078.  Sheriffs,  &c.,  of  Hyde  and 
Carteret  may  serve  process  on 
shipboard  between  Ocracoke 
and  Portsmouth. 

2079.  Sheriff  to  execute  all  process 
and  writs  from  courts;  penalty 
for  neglect;  penalty  for  false 
return. 

2080.  Sheriff  to  pay  over  to  plaintiff 
immediately,  &c. 

2081.  To  give  receipt  for  process, 
which  shall  be  evidence,  &c. 

2083.  To  take  no  obligation  of  any 
in  custody  but  as  payable  to 
himself  as  sheriff,  &c. ,  nor  un- 
lawful fees. 

2083.  Permitting  escape  of  one  in 
execution,  liable  in  action  for 
the  debt. 

2084.  Not  to  farm  his  ofiBce. 

2085.  To  have  custody  of  jail. 

2086.  To  diligently  collect  claims. 

2087.  To  furuisli  grand  jury  with  a 
list  of  retailers  of  spirituous 
liquors;  penalty  for  omission. 

2088.  Outgoing    sheriff    subject     to 


Section. 

2090.  How  paid. 

2091.  Duty  of  sheriff. 

2093.  Publication  of  delinquent  tax- 
payers required. 


794  SHEEIFFS.  [Chap.  51. 

Section. 

penalty  for  not  executing  pre- 
cepts in  certain  cases. 

2089.  Compensation     for     bringing 

convicts  to  penitentiary. 

[See  Constitution,  Art.  4,  s.  30.] 

Sec.  2066.  Board  of  county  commissioners  to  take  bonds. 
1868,  c.  20,  s.  33.     1876-'7,  c.  376,  s.  5. 

The  board  of  county  commissioners  in  every  county 
shall  take  and  approve  the  official  bonds  of  the  sheriffs, 
which  they  shall  cause  to  be  registered  and  the  originals 
deposited  with  the  clerk  of  the  superior  court  for  safe 
keeping.  Said  bonds  shall  be  taken  on  the  first  Monday 
of  December  next  after  the  election  of  sheriffs. 

McLean  v.  Buchanan,  8  Jon.,  444;  State  v.  Lowrance,  64—483;  State  v. 
Howell,  65—61. 

Sec.  3067.  Who  ineligible  to  office  of  sherifl".  R.  C,  c. 
105,  s.  5.     1829,  c.  5,  s.  6.     1830,  c.  25,  s.  3. 

No  person  shall  be  eligible  to  the  office  of  sheriff",  who 
is  not  of  the  age  of  twenty -one  years,  and  has  not  resided 
in  the  county  in  which  he  is  chosen,  for  one  year  im- 
mediately preceding  his  election. 

Hargrove  v.  Dunn,  73^595. 

Sec.  3068.  Sheriff  inelig^ible  -who  fails  to  settle  public 
dues.  R.  C,  c.  105,  s.  6.  1806,  c.  699,  s.  2.  1830,  c. 
25,  s,  2. 

No  person  shall  be  eligible  to  the  office  of  sheriff  in  any 
county,  who  theretofore  has  been  sheriff  of  such  county, 
and  hath  failed  to  settle  with  and  fully  pay  up  to  every 
officer,  the  taxes  which  were  due  from  him;  nor  shall 
any  board  permit  such  former  sheriff  to  give  bonds  for, 
or  re-enter  upon  the  duties  of  the  office,  until  he  has  pro- 
duced before  the  board  the  receipt  in  full  of  every  officer 
for  such  taxes. 

State  V.  Dunn,  73—595;  McNeill  v.  Green,  75—329. 

Sec.  2069.  Who  may  not  serve  as  sheriff.  R.  C,  c.  105,  s. 
7.     1777,  c.  118,  ss.  2,4. 

No  member  of  the  general  assembly,  nor  anv  practicing 
attorney,  shall  hold  tlie  office  of  sheriff'. 

Sec.  20  7  O.  Sheriff  shall  renew  bonds  annually ;  failure, 
to  create  vacancy.  R.  C,  c.  105,  s.  9.  1839,  c.  5,  s.  5. 
1876-'7,  c.  376,  s.  5. 

The  sheriff  shall  renew  his  bonds  annually  on  the  first 


Chap.  51.]  SHERIFFS.  795 

Monday  in  December,  and  produce  the  receipts  in  full 
from  the  state  treasurer,  county  treasurer,  and  other  per- 
sons, of  all  moneys  by  him  collected,  or  which  ought  to 
have  been  by  him  collected,  for  the  use  of  the  state  and 
county,  and  for  which  he  shall  have  become  accountable; 
and  a  failure  of  the  sheriff  to  renew  his  bonds,  or  to  ex- 
hibit the  aforesaid  receipts,  shall  create  a  vacancy. 

Vann  v.  Pipkin,  77—408;  Sneed  v.  Bullock,  80— 132;  Worley  v.  Smith, 
81—304. 

Sec.  2071.  Sheriff  removed  from  office;  duty  of  corouer 

in  sucli  case.    R.  C,  c.  105,  s,  1 1.     1 829,  c.  5,  s.  8.  / 

If  any  sheriff  shall  be  convicted  of  a  misdemeanor  in 
office,  the  court  may  at  their  discretion,  as  a  part  of  his 
punishment,  remove  him  from  office;  and  on  any  va- 
cancy in  the  office,  created  by  this  or  any  other  means, 
the  coroner  of  the  county  shall  execute  all  process  di- 
rected to  the  sheriff,  until  the  first  meeting  of  the  county 
commissioners  next  succeeding  such  vacancy,  when  the 
board  shall  elect  a  sheriff  to  supply  the  vacancy  for  the 
residue  of  the  term,  who  shall  possess  the  same  qualifi- 
cations, enter  into  the  same  bonds,  and  be  subject  to  re- 
moval, as  the  sheriff  regularly  elected;  and  should  the 
board  fail  to  fill  such  vacancy,  the  coroner  shall  con- 
tinue to  discharge  the  duties  of  sheriff  until  it  shall  be 
filled. 

Mitchell  V.  Ward,  6  Jon.  Eq.,  66;  Worley  v.  Smith,  81—304. 

Sec.  2072.  Coroner  to  give  bonds  and  take  oaths  when 
called  to  act  as  sherift'.  R.  C,  c.  105,  s.  12.  1829,  c. 
5,  s.  9. 

Any  coroner  called  to  discharge  the  duties  of  sheriff 
shall,  before  he  enters  thereon,  take  the  same  oaths,  and 
enter  into  the  same  bonds  that  may  be  required  of  sher- 
iffs; and  the  first  appointed  coroner  in  each  county  shall 
be  considered  the  coroner  to  discharge  the  duties  of 
the  sheriff,  and  the  proceeding  shall  be  entered  on  record 
by  the  clerk  of  the  board  of  county  commissioners. 

Yeargin  v.  Bilcr,  83—348. 

Sec.  2073.  Bonds  of  sheriff;  form  of  bond  for  execution 
of  process.  R.  C,  c.  105,  s.  13.  1777,  c.  118,  s.l. 
1823,  c.  1223.     1879,  c.  1  09,  s.  1. 

The  sheriff  shall  execute  three  several  bonds,  payable 
to  the  state  of  North  Carolina,  as  follows:  one  condi- 
tioned for  the  collection,  payment  and  settlement  of  the 
county,  poor,  school  and  special  taxes  in  a  sum  double 


19Q  SHERIFFS.  [Chap.  51. 

the  amount  of  said  taxes  for  the  previous  year;  one  for 
the  collection,  payment  and  settlement  of  the  public 
taxes,  as  required  liy  law,  in  a  sum  double  the  amount 
of  said  taxes  for  the  previous  year;  Provided,  tbat  the 
amount  of  neither  of  said  bonds  shall  be  I'equired  to  be 
more  than  fifty  tliousand  dollars.  And  the  amount  of 
the  third  bond,  for  the  due  execution  and  retuin  of 
process,  payment  of  fees  and  monej^s  collected,  and  tlie 
faithful  execution  of  his  office  as  sheriff,  shall  be  not  less 
than  five  thousand  dollars  nor  more  than  fifteen  thousand 
dollars,  in  the  discretion  of  the  board  of  county  commis- 
sioners, and  shall  be  conditioned  as  follows: 

The  condition  of  the  above  obligation  is  such,  that  whereas  the  above 

bounden is  elected  and  appointed  sheriff  of county; 

if,  therefore,  he  shall  well  and  truly  execute  and  due  return  make  of  all 
process  and  precepts,  to  him  directed,  and  pay  and  satisfy  all  fees 
and  sums  of  money,  by  him  received  or  levied  by  virtue  of  any  process, 
into  the  proper  office,  into  which  the  same,  by  thetenor  thereof,  ought  to 
be  paid,  or  to  the  person  or  persons  to  whom  the  same  shall  he  due,  liis,  her 
or  their  executors,  administrators,  attorneys,  or  aeenis,  and  in  all  other 
things  well,  truly  and  fuitlifully  execute  the  said  office  of  sheriff,  during  bi» 
continuance  therein,  then  the  above  obligation  to  be  void:  otherwise  to  re- 
main in  full  force  and  effect. 

Patterson  v.  Murray,  8  Jon.,  278;  Eaton  v.  Kelly,  73—110. 

Sec.  2074.  "When  board  to  require  a. ju.stification  of  bonds, 
&c.;  notice  to  sheriff";  liis  failure  to  appear  or  justify, 
&c.,  board  to  elect  another.     1879,  c.  109,  s.  2. 

It  shall  be  the  duty  of  the  board  of  county  commis- 
sioners whenever  they  shall  be  of  opinion  that  "the  bonds- 
of  the  sheriff  of  their  county  are  insufficient,  to  notify  said 
sheriff  in  writing  to  appear  within  ten  days  and  give  other 
and  better  sureties,  or  justify  the  sureties  on  his  bonds; 
and  in  case  such  sheiift'  .shaU  fail  to  appear  on  notice,  or 
fail  to  give  sufficient  bonds,  or  to  justify  his  bonds,  it  shall 
be  the  duty  of  said  board  to  elect  forthwith  some  suitable 
person  in  the  county  as  sheriff  for  the  unexpired  term, 
and  who  shall  give  proper  and  lawful  bonds  and  be  sub- 
ject to  like  obligations  and  penalties. 

state  Bank  v.  Twitly,  3  Hawks,  5;  Rhodes  v.  Vaughan,  3  Hawks,  167; 
Chambers  v,  Witherspoon,  3  Hawks,  43;  Cameron  v.  Campbell,  3  Hawks, 
285;  Crumpler  v.  Oovernor,  1  Dev.,  52;  Governor  v.  Bart,  1  Dev.,  65; 
Governor  v.  Eastwood,  1  Dev.,  157;  Governor  v.  Matlock,  1  Dev.,  214; 
Governor  V.  McAflee,  2  Dev.,  15;  Slade  v.  Governor,  3  Dev.,  8G5;  While 
V.  Miller,  3  D.  &  B.,  55,  Jones  v.  Montfort,  3  D.  &  B.,  73;  Governor  v. 
Harrison,  4  D.  &  B.,  461;  State  v.  Roane,  3  Ired,,  144;  McLin  v.  lliirdie,  3 
Ired.,  407;  State  v.  McAlpin,  6  Ired.,  347;  State  v.  Woodside,  7  Ired.,  296; 
State  v.  Long,  7  Ired.,  379;  State  v.  Woodsidcs,  8  Ired.,  104;  State  v.  Long, 
Sired.,  415;  Ellis  v.  Long,  8  Ired.,  513;  State  v.  McTnto.'^h,  9  Ired.,  307; 
State  V.  Woodside,  9  Ired.,  496;  S'ate  v.  Bradhurst,  10  Ired.,  229;  Lindsay 


Chap.  51.]  SHERIFFS.  79T 

V.  Dozier,  Busb.,  275;  McLean  v.  Bucbanan,  8  Jon.,  444;  Euggins  v.  Ilin- 
son,  Phil.,  136;  State  v.  Lowrance,  G4— 483;  State  v.  Howell,  65—01;  State 
Y.  Briggs,  G5— 159;  State  v.  Tapscott,  68—300;  Sikes  v.  CommissioDers  of 
Bladen,  73—84;  Wood  v.  Cherry,  73—110;  State  v.  Clarke,  73—355; 
Bi-umble  v.  Brown,  73—476;  State  v.  McNeill,  74—535;  People  v.  Green, 
75—339;  Prairie  v.  Jenkins,  75—545;  Prince  v.  McNeill,  77—898;  Com- 
missioners of  Green  v.  Taylor,  77—404;  Vann  v.  Pipkin,  77—408;  Cherry 
V.  Wilson,  78—164;  Cherry  v.  Wilson,  78—166;  Prairie  v.  Worth,  78—169; 
Jackson  v.  Maultsby,  78—174;  Dixon  v.  Commissioners  of  Beaufort,  80 — 
118;  Sneed  v.  Bullock,  80—133;  Gamble  v.  Rhyne,  80—183;  Worley  v. 
Smith,  81—304. 

Sec.  2075.  Board  of  commi.HSioners  liable  for  loss.  1808- 
'9,  c.  345,  s.  3. 

If  any  board  of  county  commissioners  shall  fail  to 
comply  in  good  faith  with  the  provisions  of  this  chapter, 
they  shall  be  liable  for  all  losses  sustained  in  the  collec- 
tion of  taxes,  on  motion  to  be  made  by  tl^e  solicitor  of 
the  district,  and  also  be  guilty  of  a  misdemeanor  in  office, 
and,  on  conviction,  shall  be  fined  not  less  than  five 
hundred  dollars,  nor  more  than  one  thousand  dollars. 

Sec.  3076.  Sureties  liable  for  fines,  &c.  R.  C,  c.  105,  s. 
14.     1839,  c.  33. 

The  sureties  to  a  sheriff's  bond  shall  be  liable  for  all 
fines  and  amercements  imposed  on  him,  in  the  .same  man- 
ner as  they  are  liable  for  other  defaults  in  his  official  duty. 

Evans  V.  Blalock,  3  Jon.,  377;  Slier  v.  McKee,  3  Jon.,  378;  Eaton  v. 
Kf^Wy,  73—110;  Hughes  v.  Newsom,  86—424;  Ellington  v.  Wicker,  87—14 

Sec.  2077.  May  resign  office  to  board.  R.  C,  c.  105,  s.  15. 
1777,  c.  118,  s.  1.     1808,0.752. 

Every  sheriff  may  vacate  his  office  by  resigning  the 
same  to  the  board  of  county  commissioners  of  his  county; 
and  thereupon  the  board  may  proceed  to  elect  another 
sheriff. 

Sec.  3078.  Sheriffs,  &c.,  of  Hyde  and  Carteret  may  serve 
process  on  shipboard  between  Ocracoke  and  Ports- 
month.    R.  C,  c.  105,  s.  16.     1846,  c.  67. 

The  sheriffs,  constables,  and  other  officers  of  Hyde  and 
Carteret  counties,  shall  have  pov^^er  to  execute  process 
upon  any  person,  on  board  any  vessel  lying  in  the  waters 
between  Ocracoke  island  in  Hyde  county,  and  the  island 
of  Portsmouth  in  Carteret  county;  and  for  every  process 
so  executed,  the  sheriff  shall  receive  a  fee  of  three  dollars, 
and  the  constable,  for  like  service,  three  dollars. 


T98  SHERIFFS.  [Chap.  51. 

Sec.  2079.  Sheriffto  e.xecute  all  process  and  writs  from 
courts;  penalty  for  neglect;  penalty  for  false  return. 
R.  C,  c.  105,  s.  17.  1777,  c.  218,  s.  5.  1821,  c.  IIIO. 
1874-'5,  c.  33. 

Every  sheriff,  by  himself  or  his  lawful  deputies,  shall 
execute  all  writs  and  other  process  to  him  legally  issued 
and  directed,  within  his  county,  or  upon  any  river,  bay, 
or  creek  adjoining  thereto,  or  in  any  other  place  where 
he  may  lawfully  execute  the  same,  and  make  due  return 
thereof,  under  the  penalty  of  forfeiting  one  hundred  dol- 
lars for  each  neglect,  where  such  process  shall  be  deliv- 
ered to  him  twenty  days  before  the  sitting  of  the  court 
to  which  the  same  is  returnable;  to  be  paid  to  the  party 
aggrieved  by  order  of  the  court,  upon  motion  and  proof 
of  such  delivery,  unless  such  sheriff  can  show  sufficient 
cause  to  the  court,  at  the  next  succeeding  term  after  the 
order;  and  for  every  false  return,  the  sheriflf  shall  forfeit 
and  pay  five'^iundred  dollars,  one  moiety  thereof  to  the 
party  aggrieved,  and  the  other  to  him  that  will  sue  for 
the  same;  and  moreover  be  further  hable  to  the  action  of 
the  party  aggrieved,  for  damages;  and  every  sheriff  and 
his  deputies,  and  every  constable  shall  execute  all  writs 
and  other  process  to  him  legally  issued  and  directed  from 
a  justice's  court  within  his  county,  and  make  due  return 
thereof,  under  penalty  of  forfeiting  one  hundred  dollars 
for  each  neglect  or  refusal,  where  such  process  shall  be 
delivered  to  him  ten  days  before  the  return  day  thereof, 
to  be  paid  to  the  party  aggrieved  by  order  of  the  said 
court,  upon  motion  and  proof  of  such  delivery,  unless 
such  sheriff  or  constable  can  show  sufficient  cause  to  the 
court  at  a  day  within  three  months  from  the  date  of  the 
entry  of  the  judgment  nisi,  of  which  the  said  officer  shall 
be  duly  notified. 

Douglas  V.  Auld,  1  C.  L.  Repos.,  500  (113);  Holding  v.  Holding,  2  C.  L. 
Repos.,  440  (334);  Grumpier  v.  Glisson,  N.  C.  T.  R..  79  (516);  Davis  v.  Lan- 
caster, 1  Mur.,  255;  State  v.  ArmfieUl,  2  Hawks,  240;  Governor  v.  Matlock, 
2  Hawks,  360;  Lindsay  v.  Armfield,  3  Hawks,  548;  McKellar  v.  Bowell,  4 
Hawks,  34;  Potter  v.  Sturges,  1  Dev.,  79;  Governor  v.  Twitty,  1  Dev.,  153; 
Banner  V.  McMurray,  1  Dev.,  218;  Mitchell  v.  Durham,  2  Dev.,  538;  Dowell 
v.Vannoy,  3  Dev.,  23;  McRae  v.  Evans,  1  D.  &  B.,  243;  Foy  v.  Williamson, 

1  D.  &  B.,  252;  Tarkington  v.  Alexander,  2  D.  &  B.,  87;  State  v.  Benton! 

2  D.  &  B.,  190;  Farley  v.  Lea,  4  D.  &  B.,  109;  Spruill  v.  Bateman,  4  D.  & 
B.,  489;  Governor  v.  Montford,  1  Ired,,  155;  Burgin  v.  Burgin,  1  Ired.,  160; 
Burgin  v.  Burgin,  1  Ired.,  453;  McLin  v.  Hardie,  8  Ired.,  407;  Satterwhite 
V.  Carson,  3  Ired.,  549;  Harper  v.  Miller,  4  Ired.,  34;  Lyle  v,  Wilson,  4 
Ired.,  220;  State  v.  Allen,  5  Ired.,  86;  Smith  v.  Law,  5  Ired.,  197;  State  v, 
Woodside,  7  Ired.,  296;  Lemil  v.  Freeman,  7  Ired.,  817;  Wilson  v.  Hampl 


Chap.  51.]  SHERIFFS.  V99 

ton,  7  Ired.,  333;  Parks  v.  Alexander,  7  Ired.,  412;  Collais  v.  McLeod,  8 
Ired.  221;  Halcombe  v.  Rowland,  8  Ired.,  240;  Lemit  v.  Freeman,  8  Ired,, 
312-"siierreUv.  Shuford,  10  Ired.,  200;  State  v.  Edwards,  10  Ired.,  242; 
Patterson  v.  Britt,  11  Ired.,  383;  Sloan  v.  Stanly,  11  Ired.,  627;  Judge  v. 
Houston,  12  Ired.,  108;  Hampton  v.  Brown,  13  Ired.,  18;  Bowen  v.  Jones, 
13  Ired.,' 25;  Patton  v.  Mann,  13  Ired.,  444;  Patton  v.  Marr,  Busb.,  377; 
Keav  ilelvin,  3Joa.,843;  Hyatte  v.  Allison,  3  Jon.,  533;  McDowell  v. 
Roberson,  3  Jon.,  535;  Waugh  v.  Brittain,  4  Jon.,  470;  Martin  v.  Martin,  5 
Jon  316-  Martin  V.  Martin,  5  Jon.,  349;  State  v.  Latham,  6  Jon.,  233; 
Cockerham  v.  Baker,  7  Jon.,  288;  Hassell  v.  Latham,  7  Jon.,  465;  McLean 
V  Buchanan,  8  Jon.,  444;  Tomlinson  v.  Long,  8  Jon.,  469;  Albright  v.  Tap- 
scott,  8  Jon.,  473;  McKeithan  v.  Terry;  64-25;  McDowell  v.  Clarke,  68— 
118-  Bryan  V.  Hubbs,  69—423;  Brumble  v.  Brown,  71—513;  Piebles  v. 
Newsom,  74-473;  Edwards  v.  Tipton,  77-222;  Churchill  v.  Lee,  77—341; 
Richardson  V.  Wicker,  80—172;  Finley  v.  Hayes,  81-368;  Boggs  v.  Davis, 
82—27;  Yeargin  v.  Wood,  84—326;  Smith  v.  McMillan,  84—593;  Franks  v. 
Sutton,  86—76;  Person  v.  Newsom,  87—142. 

Sec.  3080.  Sheriff  to  pay  over  to  plaintiff  immediately,  &c. 

In  all  cases  where  a  sheriff  has  collected  money  upon 
an  execution  placed  m  his  hands,  if  there  be  no  bona  fide 
contest  over  the  apphcation  thereof,  he  shall  immediately 
pav  the  same  to  the  plaintiff,  or  into  the  office  of  the 
clerk  of  the  court  from  which  the  execution  issued,  and 
upon  his  failure  to  make  such  payment  upon  demand,  he 
shall  be  liable  to  a  penalty  of  one  hundred  dollars,  to  be 
collected  as  other  penalties. 

Sec.  3081.  To  give  receipt  for  process,  wliicli  shall  be  evi- 
dence, &c.    K.  C,  c.  105,  s.  18.    1848,  c.  97. 

Every  sheriff,  coroner  or  constable  shall,  when  re- 
quested, give  his  receipt  for  all  original  and  mesne  pro- 
cess placed  in  his  hands  for  execution,  to  the  party  suing 
out  the  same,  his  agent  or  attorney;  and  such  receipt 
shall  be  admissible  as  evidence  of  the  facts  therein  stated, 
against  such  officer  and  his  sureties,  in  any  suit  between 
the  party  taking  the  receipt  and  such  oificer  and  his 
sureties. 

King  V.  Hunter,  65—603. 

Sec.  3083.  To  take  no  obligation  of  any  one  in  custody, 
but  as  payable  to  himself  as  sheriff,  &c.,  nor  unlawful 
fees.    K.  C,  c.  105,  s.  19.    1777,  c.  118,  s.  8. 

The  sheriff,  or  his  deputy,  shall  take  no  obligation  of 
or  from  any  person  in  his  custody,  for  or  concerning  any 
matter  or  thing  relating  to  his  office,  otherwise  payable 
than  to  himself  as  sheriff,  and  dischargeable  upon  the 
prisoner's  appearance  and  rendering  himself  at  the  day 


800  SHERIFFS.  [Chap.  51. 

and  place  required  in  the  writ  (whereupon  he  was  or 
shall  be  taken  or  arrested),  and  his  sureties  discharging 
themselves  therefrom  as  special  bail  of  such  piisoner,  or 
such  person  keeping  within  the  limits  and  rules  of  any 
prison;  and  every  other  obligatioii  taken  by  any  slieriff 
in  any  other  manner  or  form,  by  color  of  his  office,  shall 
be  void,  except,  in  any  special  case,  any  other  obligation 
shall  be,  by  law,  particularly  and  expressly  directed :  and 
no  sheriff  shall  demand,  exact,  take  or  receive  any 
greater  fee  or  reward  whatsoever,  nor  shall  have  any  al- 
lowance, reward  or  satisfaction  from  the  public,  for  any 
service  by  him  done,  other  than  such  sum  as  the  court 
shall  allow  for  ex  officio  services,  and  the  allowance  given 
and  provided  by  law. 

Rliodes  V.  Viiiighan,  2  Hawks,  167;  Denson  v.  Sledge,  2  Dcv.,  136; 
Clark  V.  Walker,  3  Ired.,  181;  Heilig  v.  Lemley,  74—250. 

Sec.  20S3.  Permitting  escape  of  one  in  execution,  liable 
in  action  for  tlie  debt.  K.  C,  c.  105,  s.  20.  13  Edw. 
I.,  c.  11.    1777,  c.  118,  ss.  10,  11. 

When  any  sheriff  shall  take  or  receive  and  have  in 
keeping  the  body  of  any  debtor  in  execution,  or  upon 
attachment  for  not  performing  a  judgment  for  the  pay- 
ment of  any  sum  of  money,  and  shall  wilfully  or  negli- 
gently suffer  such  debtor  to  escape,  the  person  suing  out 
such  execution  or  attachment,  his  executors,  or  adminis- 
trators, shall  have  and  maintain  an  action  for  the  debt 
against  such  sheriff  and  his  sureties  on  his  official  bond, 
and  in  case  of  his  death,  against  his  executors  or  admin- 
istrators, for  the  recovery  of  all  such  sums  of  money  as 
are  mentioned  in  the  said  execution  or  attachment,  and 
damages  for  detaining  the  same. 

Ellis  y.  Gee,  1  Mur.,  445;  Governor  v.  Matlock,  1  Hawks,  425;  Wilkes  v. 
Slaughter,  3  Hawks,  211;  Dowd  v.  Seawell,  3  Dev.,  185;  Walker  v.  Vick, 
2D.  &  B.,  99;  Smallwood  v.  Wood,  2  D.  &  B.,  356;  Williams  v.  Floyd,  5 
Ired.,  649;  Lash  v.  Ziglar,  5  Ired.,  705;  .Jackson  v.  Hampton,  6  Ired.,  34; 
Wright  V.  Roberts,  6  Ired.,  116;  Adams  v.  Turrentine,  8  Ired.,  147;  State 
V.  Ellison,  9  Ired.,  261;  Wliicker  v.  Roberts,  10  Ired.,  485;  Jack.son  v. 
Hampton,  10  Ired.,  579;  Currie  v.  Worthy,  2  Jon.,  104;  State  v.  McKee, 
2  Jon.,  379;  Currie  v.  Worthy,  3  Jon.,  315;  Wiley  v.  Eure,  8  .Jon.,  .330; 
Lusk  V.  Falls,  63—188. 

Sec.  2084.  Xot  to  farm  lii.s  office.  R.  C,  c.  105,  s.  21.  23 
Hen.  VI,  c.  9. 

No  sheriff  shall  let  to  farm  in  any  manner,  his  county, 
or  any  part  of  it,  under  pain  of  forfeiting  five  hundred 
dollars;  one-half  to  the  use  of  the  county,  and  the  other 
half  to  the  person  suing  for  the  same. 


Chap.  51.]  SHERIFFS.  801 

See.  2085.  To  have  custody  of  jail.    R.  C,  c.  105,  s.  32. 

The  sheriff  shall  have  the  care  and  custody  of  the  jail 
in  his  county;  and  shall  be,  or  appomt,  the  keeper 
thereof.  ^, .,    ^„ 

Turrentine  V.  Faucett,  11  Ired.,  653;  Bunting  v.  Mcllhenny,  Phil,  o79. 

Sec.  2086.  To  diligeutly  collect  claims.  B.  C,  c.  105,  s.  23. 
1866,  c.  28.  . 

When  a  claim,  within  the  jurisdiction  of  a  .Ijistice  ot 
the  peace,  shall  be  placed  in  the  hands  of  any  sheriff,  or 
his  deputy,  for  collection,  he  shall  diligently  endeavor  to 
collect  the  same. . 

state  V.  Long,  7  Ired..  379. 

Sec.  2087.  To  furnish  grand  jury  with  a  list  of  retailers 
of  spirituous  liquors ;  penalty  for  omission.  R.  C,  c. 
105,  s.  24.    1825,  c.  1272,  s.  4.    1850,  c.  185. 

The  sheriff  shall  lay  before  the  grand  jury  of  his  county, 
at  each  court,  as  soon  as  the  grand  jury  shall  be  assembled, 
a  list  of  all  persons  who  may  have  obtained  hcense  to  re- 
tail spirituous  hquors  by  small  measure,  within  two  years 
previous  to  said  court;  which  list  the  foreman  of  thegrand 
fury  at  the  close  of  its  session,  shall  dehver  to  the  clerk 
for  safe  keeping;  and  any  sheriff  failing  to  perform  the 
duty  aforesaid,  shall  forfeit  and  pay  to  the  state  ten  dol- 
lars, to  be  recovered  by  the  prosecuting  officer,  in  the 
same  manner  as  the  penalties  against  sheriffs  for  not  re- 
turning process. 

Sec.  2088.  Outgoing  sheriff  subject  to  penalty  for  not 
executing  precepts  in  certain  cases.  R.  C,  c.  105,  s.  25. 

Any  sheriff  who  shall  have  received  a  precept,  and  shall 
o-o  out  of  office  before  the  return  day  thereof,  without 
having  executed  the  same,  shall  forfeit  and  pay  to  the 
party  at  whose  instance  it  was  issued,  the  sum  of  one 
hundred  dollars,  if  such  precept  shall  have  remained  in 
his  hands  for  such  length  of  time  wherein  it  might  have 
been  well  executed  bv  him;  unless  the  same  shall  have 
been  thereafter  executed  by  the  successor  of  such  sheriff, 
and  returned  at  the  day  and  place  commanded  therein; 
or  unless  it  shall  have  been  delivered  over  to  the  suc- 
ceeding sheriff  time  enough  to  have  allowed  of  its  being 
executed  by  him;  and  the  penalty  aforesaid  shall  be  re- 
coverable by  notice  against  such  outgoing  sheriff  and  bis 
sureties. 


802  SHERIFFS.  [Chap.  51. 

Sec.  2089.  Compensation  tor  bringing  convicts  to  peni- 
tentiary.    1874-'5,  c.  107,  s.  1. 

The  sheriffs  of  the  several  counties  shall  be  allowed 
two  dollars  per  day  and  actual  necessary  expenses  for 
conveying  convicts  to  the  penitentiary;  also  one  dollar 
per  day  and  actual  necessary  expenses  for  each  guard, 
not  to  exceed  one  guard  for  every  three  prisoners,  as  the 
sheriff  upon  affidavit  before  the  clerk  of  the  superior 
court  of  his  county  shall  swear  to  be  necessary  for  the 
safe  conveyance  of  said  convicts. 

Sec.  2090.  How  paid.    1874-'5,  c.  107,  s.  2. 

Upon  filing  such  affidavit  with  the  auditor,  together 
with  a  fully  itemized  account,  to  be  sworn  to  before  the 
auditor,  of  the  number  of  days  requisite  for  coming  and 
returning,  and  of  the  actual  expenses  for  conveying  said 
convicts  and  of  the  guard  necessary  for  their  safe  keep- 
ing, the  auditor  shall  be  required  to  audit  such  verified 
clanns  of  the  sheriff,  and  the  treasurer  to  pay  all  such 
warrants  properly  drawn  upon  him  out  of  any  moneys 
iu  the  treasury  not  otherwise  appropriated. 

Sec.  2091.  Duty  of  sheriflF.    1874-'5,  c.  107,  s.  3. 

The  sheriff  shall  file  with  the  board  of  commissioners 
of  his  county  a  copy  of  his  affidavit  as  to  necessarv 
guard,  together  with  a  copy  of  his  itemized  account  of  ex- 
penses, both  certified  to  by  the  auditor  as  true  copies  of 
those  on  file  in  his  office,  or  be  guilty  of  a  misdemeanor. 

Sec.  2092.  Piiblicationof  delinquent  tax-payers  required. 
1876-'7,  c.  78,  ss.  1,  2,  3. 

Whenever  any  sheriff  or  tax-collector  shall  be  credited 
on  settlement  with  any  tax  or  taxes,  by  him  returned  as 
insolvent,  dead  or  removed,  he  shall  forthwith  make 
publication  at  the  courthouse  door,  and  at  least  one  pub- 
lic place  in  each  and  every  township  in  his  county,  of  a 
complete  list  of  the  names  of  such  insolvent,  dead  or  re- 
moved delinquents,  with  the  amount  of  the  tax  due  from 
each,  and  the  sum  total  so  credited.  Such  list,  by  order 
of  tlie  board  of  commissioners,  may  also  be  published  in 
any  newspaper  printed  in  the  county;  in  which  case,  the 
expense  of  the  advertisement,  for  such  time  as  may  be 
directed,  shall  he  paid  by  the  county.  Any  sheriff,  or 
tax-collector  failing  to  comply  with  the  provisions  of  this 
section,  shall  be  guilty  of  a  misdemeanor,  and  upon  con- 
viction, shall  be  fined  not  less  than  ten,  nor  more  thau 
one  hundred  dollars. 


Chap.  52.]     SUEETY  AND  PEINCIPAL. 


803 


CHAPTER   FIFTY-TWO. 
SURETY  AND  PEINCIPAL. 


Section. 

2097.  Surety  may  cause  written 
notice  to  be  given  to  creditor; 
proviso. 

2098.  Negligence  to  operate  as  dis- 
cliarge;  proviso. 

2099.  Notice  to  be  in  writing. 

2100.  Defendants  may  show  they 
are  sureties;  jury  or  justice  to 
find  the  facts. 

2101.  Property  of  principal  to  be 
first  levied  on  and  sold. 


Section. 

2093.  Summary  remedy  for  surety 
against  principal. 

2094.  Surety  may  sue  co-surety  for 
ratable  part  of  debt  paid  for 
principal. 

2095.  May  dissent  from  stay  of  exe- 
cution, then  not  liable  to  surely 
for  the  stay ;  otBcer,  how  to  col- 
lect in  such  case. 

2096.  Surety,  paying  debt  of  de- 
ceased principal,  to  have  pri- 
ority as  the  creditor  had 
against  the  estate. 

Sec.  2093.  Summary  remedy  for  surety  against  principal. 
K,  C,  c.  110,  s.  1.    1777,  c.  487,  s.  1. 

Any  person,  who  may  have  paid  money  for  and  on 
account  of  those  for  whom  he  became  sm-ety,  upon  pro- 
ducing to  the  superior  court,  or  any  justice  of  the  peace 
baring  jurisdiction  of  the  sum,  a  receipt,  and  showing 
that  an '  execution  has  issued,  and  he  has  satisfied  the 
same,  and  making  it  appear  by  sufficient  testimony,  that 
he  has  laid  out  and  expended  any  sum  of  money,  as  the 
surety  of  such  person,  may  move  the  court  or  justice  of 
the  peace,  as  the  case  may  be,  for  judgment  against  his 
principal,  for  the  amount  which  he  has  actually  paid;  a 
citation  having  previously  issued  against  the  principal  to 
show  cause  why  execution  should  not  be  awarded;  and 
should  not  the  principal  show  sufficient  cause,  the  court 
or  justice  shall  award  execution  against  the  estate  of  the 
principal. 

Shepherd  v.  Monroe,  2  C.  L.  Repos.,  634  (437);  Woodman  v.  Mooring,  3 
Dev.,  237;  Hodges  v,  Armstrong,  3  Dev.,  253;  Sherwood  v.  Collier,  3  Dev., 
380;  Sherrod  v.  "Woodard,  4  Dev.,  360;  State  Bank  v.  Locke,  4  Dev.,  529; 
Eason  v.  Petway,  1  D.  &  B.,  44;  Gray  v.  Bowls,  1  D.  &  B.,  437;  Thompson, 
V.  Sanders,  4  D.  &  B.,  404;  Linn  v.  McLelland,  4  D.  &  B.,  458;  Wharton  v. 
Woodburn,  4  D.  &  B.,  507;  Shaw  v.  McFarlane,  1  Ired.,  216;  Brisendine 
V.  Martin,  1  Ired,  286;  Davis  v.  Sanderlin,  1  Ired.,  389;  Pipkin  v.  Bond,  5 
Ired.  Eq.,'  91;  Forbes  v.  Smith,  5  Ired.  Eq.,  369;  Hall  v.  Whitaker,  7  Led., 
353;  Ledbetter  v.  Forney,  11  Ired.,  294;  Ponder  v.  Carter,  12  Ired.,  242. 


804  SURETY  AND  PRINCIPAL.      [Chap.  52. 

Sec.  2094.  Surety  may  sue  co-surety  for  ratable  p.irt  of 
debt  paid  for  priucipal.  R.  C,  e.  IIO,  s.  3.  1807,  c. 
732. 

Where  there  are  two  or  more  sureties  for  the  perform- 
ance of  a  contract,  and  one  or  more  of  them  may  have 
been  compelled  to  perforju  and  satisfy  the  same,  or  any 
part  tliereof,  and  the  principal  shall  be  insolvent,  or  out 
of  the  state,  such  surety  may  have  and  maintain  an  ac- 
tion against  every  other  surety,  for  a  just  and  ratable 
proportion  of  the  sum  which  may  have  been  paid  as 
aforesaid,  whether  of  principal,  interest  or  cost. 

Shepberd  v.  Monroe,  2  C.  L.  Repos.,  624  (437) ;  Moore  v.  Moore,  4  Hawks, 
358;  Smith  V.  Smith,  1  Dev.  Eq.,  173;  Gomez  v.  Lazarus,  1  Dev.,  205; 
NorfleetT.  Cotton,  3  Dev.  Eq.,  334;  Shcrrod  v.  AYoodanl,  4  Dev.,  360; 
Moore  v.  Isley,  3  D.  &  B.  Eq.,  372;  Hutchins  v.  JMcCauley,  2  D.  &  B.  Eq., 
399;  Dawsou  v.  Petway,  4  D.  &  B.,  396;  Tliompson  v.  Sanders,  4  D.  &  B,, 
404;  Osborn  v.  Cunningham,  4  D.  &  B.,  433;  Linu  v.  McClelland,  4  D.  & 
B.,  458;  Brisendine  v.  Martin,  1  Ired.,  286;  Nowhmd  v.  Martin,  1  Ircd,  307; 
Gregory  v.  Murrell,  2  Ired.  Eq.,  233;  Eaiuey  v.  Yarborough,  2  Ired  Eq., 
249;  Boll  v.  Jasper,  2  Ired.  Eq.,  597;  Foley  v.  Robards,  3  Ired.,  177;  Allen 
v.  "Wood,  3  Ired.  Eq.,  386;  Jones  v.  Hays,  3  Ircd.  Eq.,  502;  Daniel  v. 
Joyner,  3  Ired.  Eq.,  513;Longv.  Barnett,  3  Ired.  Eq.,  631;  Pool  v.  Ebriug- 
haus,  4  Ired.  Eq.,  33;  Dobson  v.  Prather,  6  Ircd.  Eq.,  31;  Jones  v.  Blanton, 
6  Ired.  Eq.,  115;  Hall  v.  Robinson,  8  Ired.,  56;  Godsey  v.  Basou,  8  Ired., 
260;  Poolv.  Williams,  8  Ired.,  286;  Draughan  v.  Bunting,  9  Ircd.,  10; 
Brandon  v.  Medley,  1  ,Ion.  Eq.,  313;  Reeves  v.  Bell,  2  Jon.,  254;  Lcary  v. 
Cheshire,  3  Jon.  Eq.,  170;  Towe  v.  Newbokl,  4  Jon.  Eq.,  212;  Kearney  v. 
Harrell.  5  Joa.  Eq.,  199;  Sikes  v.  Quick,  7  Jon.,  19;  Hock.aday  v.  Parker, 
8  Jon.,  16;  Miller  v.  Miller,  Phil.  Eq.,  85;  Derossett  v.  Bradley,  63—17; 
Parham  v.  Green,  64—436;  Clark  v.  Williams,  70—679;  Haywood  v.  Daves, 
80—338;  Hughes  v.  Boone,  81—204;  Craven  v.  Freeman,  82—361;  Bright 
V.  Lenuon,  83— 183;  Pickens  v.  Miller,  83—548. 

Sec.  3095.  May  dissent  from  stay  of  execution,  then  not 
be  liable  to  surety  for  the  stay;  officer,  how  to  collect 
in  such  cases.    R.  C,  c.  IIO,  s.  3.     1839,  c.  O,  ss.  1,  2. 

Whenever  any  judgment  shall  be  obtained  before  a 
justice,  against  a  principal  and  his  suiety,  and  the  priuti- 
pal  debtor  shall  desire  to  stay  the  execution  thereon,  but 
the  surety  is  unwilling  that  "such  stay  shall  be  had,  the 
surety  may  cause  his  dissent  thereto  to  be  entered  by  the 
justice,  which  shall  absolve  him  fron)  all  liability  to  the 
suiety,  who  may  stay  the  same.  And  the  constable  or 
other  officer,  who  may  have  the  collection  of  the  debt, 
shall  make  the  money  out  of  the  property  of  the  principal 
debtor,  and  that  of  the  surety  for  the  stay  of  execution, 
if  he  can,  before  he  shall  sell  the  property  of  the  surety 
before  judgment. 


Chap.  53.]     SURETY  AND  PRINCIPAL.  805 

Sec.  209G,  Surety  i>ayiiig  debt  of  deceased  principal,  to 
have  priority  as  tlie  creditor  liad  against  the  estate. 
R.  C,  c.  110,  s.  4.     1829,  c.  33. 

Whenever  a  sui^ety,  or  his  representative,  shall  pay 
the  debt  of  his  deceased  principal,  the  claim  thus  accru- 
ing shall  have  such  priority  in  the  administration  of  the 
assets  of  the  principal,  as  had  the  debt  before  its  payment. 

Cliaffiu  V.  Hanes,  4  Dev.,  103;  Drake  v.  Coltrane,  Busb.,  300;  Howell  v. 
Reams,  73—391. 

Sec.  2007.  Surety  may  cause  written  notice  to  be  given  to 
creditor;  proviso.     18G8-'9,  c.  232,  s.  1. 

In  all  cases  where  any  surety  or  indorser  on  any  note, 
bill,  bond,  or  other  written  obligation,  shall  consider 
himself  in  danger  of  loss  in  consequence  of  his  contingent 
liability,  either  from  the  insolvency  or  misconduct  of  the 
principal,  in  said  note,  bill,  bond,  or  other  written  obliga- 
tion, or  from  the  negligence  of  the  payee  or  holder  of 
any  such  instrument,  it  shall  be  lawful  for  such  surety 
or  indorser,  at  any  time  after  such  note,  bill,  bond,  or 
other  written  obligation  shall  have  become  due  and  pay- 
able, to  cause  written  notice  to  be  given  to  the  payee  or 
holder  of  any  such  paper  or  obligation,  requiring  him  to 
bring  suit  on  said  obligation,  and  to  use  all  reasonable 
diligence  to  save  harmless  such  surety  or  indorser:  Pro- 
vidnd,  nothing  herein  contained  shall  apply  to  official 
bonds,  or  bonds  given  by  any  person  acting  in  a  fiduciary 
capacity. 

Cole  V.  Pox,  83 — 463;  Goodmau  v.  Litaker,  84 — 8;  Torrence  v.  Alexan- 
der, 85—143. 

Sec.  2098.  Negligence  to  operate  as  a  discharge;  proviso. 
1868-'9,  c.  233,  s.  3. 

Should  the  payee  or  holder  of  any  such  note,  bond,  bill, 
or  other  written  obligation,  refuse  or  fail,  within  thirty 
days  from  the  service  of  said  notice,  to  bring  suit  in  the 
appropi-iate  court  in  an  effoi't  to  save  harmless  such  surety 
or  indorser,  such  refusal  or  failure  to  sue,  shall  operato 
as  a  discharge  of  such  surety  or  indorser,  from  all  liabil- 
ity whatever,  on  any  such  note,  bond,  bill,  or  other  written 
obligation:  Provided,  that  this  notice  shall  not  have  the 
effect  to  discharge  from  liability  any  co-suret)'  who  does 
not  join  in  such  notice,  or  who  has  not  given  a  sepai'ate 
notice:  Provided  further,  that  this  and  the  preceding 
section  shall  not  apply  to  holders  of  such  note,  bond,  bill, 
or  obligation,  who  hold  the  same  as  collateral  security  or 
in  trust. 

Cole  V.  Fox,  83—463;  Goodmau  v.  Litaker,  84—8. 


806  SURETY  AND  PRINCIPAL.     [Chap.  52. 

Sec.  2099.  Notice  to  be  in  writing.     1868-'9,  c.  232,  s.  3. 

Such  notice  shall  be  served  by  the  sheriff  or  his  deputy, 
who  shall  return  it  to  the  party  for  whose  benefit  the 
notice  was  issued,  which  shall  be  evidence  of  the  fact  iu 
all  courts. 

Sec.  2100.  Defendants  may  show  they  are  sureties;  jnry 
or  justice  to  find  the  facts.  K.  C,  e.  31,  s.  124.  1826, 
c.  31,  s.  1. 

In  the  trial  of  actions  upon  contracts,  either  of  the  de- 
fendants may  show  in  evidence  that  he  is  surety,  and  if 
it  be  satisfactorily  shown,  the  jury  in  their  verdict,  or 
the  justice  of  the  peace  in  his  judgment,  shall  distinguish 
the  principal  and  surety,  which  shall  be  indorsed  on  the 
execution  by  the  clerk,  or  justice  of  the  peace  issuing  it. 

Davis  V.  Sanderlin,  1  lied.,  389;  Stewart  v.  Ray,  4  Ired.,  269;  Eaton  v. 
Eaton,  8  Ired.  Eq.,  108;  Lowdei-  v.  Noding,  8  lied.  Eq.,  208. 

Sec.  2101.  Property  of  principal  to  be  first  levied  on  and 
sold.  K.  C,  c.  31,  s.  2.   1826,  c.  31,  s.  2.  Note  Revised 
Code,  c.  1 10. 

When  an  execution,  indorsed  as  aforesaid,  shall  come 
to  the  hands  of  any  officer  for  collection,  he  shall  levy 
the  same  on  the  property  of  the  principal,  or  so  much 
thereof  as  shall  be  necessary  to  satisfy  the  execution, 
and  for  want  of  sufficient  property  of  the  principal,  also 
on  the  property  of  the  surety,  and  make  sale  thereof: 
Provided,  that,  in  all  such  levies  a  sale  shall  first  be  had 
of  all  the  property  of  the  principal  levied  on,  before  that 
of  the  surety. 

EasoQ  V.  Petway,  1  D.  &  B.,  44;  Sliaw  v.  McFailand,  1  Ired.,  216;  Da- 
vis V.  Sanderlin,  1  Ired.,  389;  SliufiEord  v.  Cline,  13  Ired.,  463. 


Chap.  53.] 


WIDOWS. 


8or 


CHAPTER  FIFTY-THREE. 
WIDOWS. 


Section. 

2103.  To  what  dower  a  widow  is  en- 
titled; consequences  of  adul- 
tery. 

2103.  Subject  to  the  provision  in  the 
preceding  section,  widow  of 
intestate,  and  widow  dissent- 
ing from  will,  entitled  to  a 
third  in  value  of  her  hus- 
band's estate,  including  dwell- 
ing-house, &c. 

2104.  Dower  not  liable  to  be  sold 
under  execution. 

8105.  Dower  and  land  in  lieu  thereof 
not  subject  to  debts. 

2106.  Alienation  of  husband  passes 
only  two-thirds. 

2107.  When  dower  barred. 

2108.  Widow  may  dissent  from  hus- 
band's will. 

2109.  Effect  of  dissent. 

2110.  When  dower  assigned  by  heir 
or  devisee  with  consent  of 
widow. 

2111.  How  dower  may  be  applied 
for. 

2113.  Who  must  be  parties. 

2113.  How  dower  assigned. 

2114.  Notices  to  such  parties. 
3115.  Bona  fide  conveyances  not  af- 
fected, when. 

2116.  What  widows  entitled  to  a 
year's  support;  her  year's  al- 
lowance. 

2117.  From  what  assigned. 


Section. 

2118.  Value  of  the  allowance. 

3119.  FiimOy  defined. 

3130.  Dutyof  the  administrator,  &c., 
to  assign. 

3121.  How  value  of  articles  assign- 
ed, to  be  ascertained. 

3133.  Upon  application  of  widow, 
personal  representative  to  ap- 
ply to  justice  of  the  township, 
&c. ;  proviso. 

3133.  Duty  of  the  commissioners. 
2124.  Appeal  may  be  taken  to  supe- 
rior court. 

2135.  Duty  of  appellant. 

2126.  Sum  allowed  widow,  to  be 
credited  to  executor,  &c.,  un- 
less impeached  for  fraud. 

2137.  When  above  allowance  shall 
be  in  full. 

3138.  When  allowance  not  in  full. 

3129.  Application  to  be  made  by 
summons,  &c. 

3130.  What  to  be  set  forth  in  com- 
plaint. 

2131.  What  judgment  shall  be  given. 

2132.  Duty  of  commissioners,  how 
report  returned. 

2133.  Party  interested  may  except. 

3134.  If  the  report  confirmed,  what 
judgment  and  execution; 
costs. 

2135.  Fees  of  commissioners,  sheriff 
and  justice. 


Sec.  3102.  To  what  dower  a  widow  is  entitled;  conse- 
quences of  adultery.  1868-'9,  c.  93,  s.  33.  1871-'3, 
c.  193,  s.  44. 

Widows  shall  be  endowed  as  at  common  law  as  in  this 
chapter  defined:  Provided,  if  any  married  woman  shall 
commit  adultery,  and  shall  not  be  living  with   her  hus- 


808  WIDOWS.  [Chap.  53. 

band  at  his  death,  she  shall  thereby  lose  all  right  to  dower 
in  the  lands  and  tenements  of  her  husband;  and  an}' such 
adultery  may  be  pleaded  in  bar  of  any  action  or  proceed- 
ing for  the  recovery  of  dower. 

Wallers  v.  Jordan,  13  Ired.,  170,  Walters  v.  Jordan,  13  Ired.,  361;  Cook 
V.  Sexton,  79—305. 

Sec.  2103.  Subject  to  the  provision  in  tlie  preceding  sec- 
tion, widow  of  intestate  nud  widow  di.ssenting:  from 
will  entitled  to  a  third  in  value  of  her  husband's  estate, 
including  dwelling  house,  &c.     B.  C,  c.  118,  s.  3.    R. 
S.,  c.  121,  s.  3.     1827,  c.  46.     18«9-'70,  c,   176,  s.   1. 
1883,  c.  175. 
Subject  to  the  provision  in  the  preceding  section  every 
married  woman,  upon  the  death  of  her  husband  intes- 
tate, or  in  case  she   shall  dissent  from  his  will,  shall  be 
entitled  to  an  estate  for  her  life  iu  one-third  in  value  of 
all  the  lands,  tenements  and  hereditaments  whereof  her 
husband  was  seized  and  possessed  at  any  time  during  the 
coverture,   in   which   third   part   shall  be  included   the 
dwelling  house  in  which  her  husband  usually  resided,  to- 
gether with  ofifices,  out  houses,  buildings  and  improve- 
ments thereunto  belonging  or  appertaining;  she  shall  in 
hke  manner  be  entitled  to  such  an  estate  in  all  legal 
rights  of  redemption  and  equities  of  redemption  or  other 
equitable  estates  in  lands,  tenements  and  hereditaments 
whereof  her  husband  was  seized  in  fee  at  anytime  during 
the  coverture,  subject  to  all  valid  incumbrances  existing 
before  the  coverture  or  made  during  it  with  her  free  con- 
sent lawfully  appearing  thereto.     The   jury  summoned 
for  the  purpose  of  assigning  dower  to  a  widow,  shall  not 
be  restricted  to  assign  the  same  in  every  separate  and  dis- 
tinct tract  of  land;    but  may  allot  her  dower  iu  one  or 
more  tracts,  having  a  due  legard  to  the  interest  of  the 
heirs  as  well  as  to  the  right  of  the  widow. 

Harrison  v.  Wood,  1  D.  &  B.  Eq.,  437;  Potter  v.  Everett,  7  Ired.  Eq., 
152;  Thompson  v.  Tliompsou,  1  Jon.,  4:;0;  Mitchener  v.  Atkinson,  Pliil. 
Eqi  23;  Royster  v.  Royster,  Phil,  926;  Stroud  v.  Stroud,  Pliil.,  535; 
Ramsour  V.  Ramsour,  03—331;  Webb  v.  Boyle,  03-271 ;  Caroon  v.  Cooper, 
G3— 386;  Rose  v.  Rose,  03—891;  Smith  v.  Gilmer,  04—546;  Reilzcl  v.  Eck- 
ard,  65—673;  Sutton  v.  Askew,  00—172;  Wesson  v,  Johnson,  06—189; 
Bunting  V.  Foy,  66—193;  Fcllon  v.  Elliotl,  00—195;  Williams  v.  Munroe, 
67—164;  Hughes  V.  Merrilt,  07-380;  Creecy  v.  Pcarce,  09-07;  Gregory  v. 
Gr.-gory,  09-522;  Ruffln  v.  Co.\,  71—253;  lIcAfee  v.  Bettis,  72—28;  Slate 
V.  Cunningham,  72—109;  Gwathmcy  v.  Pearce,  74—398;  llolliday  v.  Mc- 
Millan, 79—315;  Brnce  v.  Strickland,  81—267;  O'Connor  v.  Ilarris,  81— 
279;  Askew  v.  Byuum,  81—350;  Jenkins  v.  Jenkins,  82—208;  O'Kclly  v. 
Williams,  84—281;  Gregory  v.  Ellis,  86—579;  Burton  v.  Spiers,  87—87. 


Chap.  53.]  WIDOWS.  809 

Sec.  2104.  Dower  not  liable  to  be  sold  under  execution. 
1868-'9,  c.  93,  s.  34. 

Dower,  or  right  of  dower,  shall,  in  uo  case,  be  subject 
to  seizure  on  execution  foi-  the  payment  of  any  debt  of 
the  husband  during  the  term  of  the  life  of  the  wife. 

Avery  ex  parte,  64 — 113. 

Sec.  3105.  Dower  and  land  in  lieu  thereof  not  subject  to 
debts.    K.  C,  c.  118,  s.  8.     1791,  c.  351,  s.  4. 

The  dower  of  a  widow,  and  also  such  lands  as  may  be 
devised  to  her  by  his  will,  if  such  lands  do  not  exceed  the 
quantity  she  would  be  entitled  to  by  right  of  dower,  shall 
not  be  subject  to  the  payment  of  debts  due  from  the 
estate  of  her  husband,  during  the  term  of  her  life. 

Gully  V.  Holloway,  63—84;  Avery  ex  parte,  64—113;  Simonton  v.  Hous- 
ton, 78—408. 

Sec.  2106.  Alienation  of  husband  passes  only  two-thirds. 
1868-'9,  c.  93,  s.  35. 

No  alienation  of  the  husband  alone,  with  or  without 
covenant  of  warranty,  shall  have  any  other  or  further 
effect  than  to  pass  his  interest  in  such  estate,  subject  to 
the  dower  right  of  his  wife:  Provided,  that  a  mortgage 
or  trust  deed  by  the  husband  to  seciu-e  the  purchase 
money,  or  any  part  thereof,  of  land  bought  by  him,  shall, 
without  the  wife  executing  the  deed,  be  effectual  to  pass 
the  whole  interest  according  to  the  provisions  of  the  said 
deed. 

Harrison  v.  Wood,  1  D.  v.  B.  Eq.,  437;  Potter  &  Everett,  7  Ired.  Eq., 
152;  Rose  V.  Kose,  63—391;  Avery  ex  parte,  64—113;  Sutton  v.  Askew, 
66—173;  Felton  v.  Elliott,  66—195;  Williams  v.  Munroe,  67—164;  Hughes 
V  Merri'tt,  67—386;  Holliday  v.  McMillan,  79—315;  Bruce  v.  Strickland, 
81—267;  O'Connor  v.  Harris,  81—279;  Askew  v.  Byuum,  81—350;  Jenk- 
ins V.  Jenkins,  83—208;  O'Kelly  v,  Williams,  84—281. 

Sec.  2107.  When  dower  barred.     1868-'9,  c.  93,  s.  36. 

The  right  to  dower  under  this  chapter  shall  pass  and 
be  effectual  against  any  widow  or  person  claiming  under 
her  upon  the  wife  joining  with  her  husband  in  the  deed 
of  conveyance  and  being  privately  examined  as  to  her 
consent  thereto  in  the  manner  prescribed  by  law. 

Gwatlimey  v.  Pearce,  74 — 398. 
Sec.   3108.   Widow    may    dissent    from    husband's    will. 
1868-'9,  c.  93,  s.  37. 

Every  widow  may  dissent  from  her  husband's  wnll  be- 
fore the  clerk  of  the  superior  court  of  the  county  in 
which  such  will  is  proved,  at  aily  time  within  six  months 


810  WIDOWS.  [Chap.  53. 

after  the  probate.  The  dissent  may  be  in  person,  or  by 
attorney,  authorized  in  writing,  executed  by  the  widow 
and  attested  bv  at  least  one  witness  and  duly  proved. 
The  dissent,  whether  in  person  or  by  attorney,  shall  be 
filed  as  a  record  of  court.  If  the  widow  be  an  infant  or 
insane,  she  may  dissent  by  her  guardian. 

Hinton  V.  Hinton,  Phil.,  410;  Simonton  v.  Houston,  78-408. 

Sec.  2109.  Eflfect  of  dissent.    B.  C,  c.  118,  s.  12.    18C8- 
'9,  c.  93,  s.  38. 

Upon  such  dissent,  the  widow  shall  have  the  same 
rights  and  estates  in  the  real  and  personal  property  of 
her  husband  as  if  he  had  died  intestate. 

Arlington  v.  Dortcb,  77—367. 

Sec.  3110.  When  dower  assigned  by  heir  or  devisee  with 
consent  of  widow.     1868-'9,  c.  93,  s.  39. 

If  the  personal  property  of  a  decedent  be  sufficeut  to 
pay  his  debts  and  charges  of  administration,  the  heir  or 
devisee  with  the  widow  may,  by  deed,  agree  to  an  assign- 
ment of  her  dower. 

Sec.  3111.  How  dower  may  be  applied  for.    1 868-'9,  c.  93, 

s.  40. 
If  no  such  agreement  be   made,  a  widow  may  apply 
for  assignment  of  dower  by  petition  in  the  superior  court 
as  in  other  cases  of  special  proceedings. 

Askew  V.  Bynum,  81 — 350. 

Sec.  3113.  Who  must  be  parties.    1868-'9,  c.  93,  s.  41. 

The  heirs,  devisees  and  other  persons  in  possession  of, 
or  claiming  estates  in  the  lands,  shall  be  parties  to  such 
proceeding. 

Ramsour  V.  Ramsour,  63—231;  Moore  ex  parte,  64—00;  Lowery  v.  Low- 
ery,  64^110;  Avery  ex  parte,  64—113;  Corney  v.  Whitehurst,  64—426; 
Bunting  V.  Foy,  66—193;  Gregory  v.  Gregory,  69—523;  Askew  v.  Bynum, 
81—350. 

Sec.  3113.  How  dower  assigned.    1868-'9,  c.  93,  s.  42. 

If  dower  be  adjudged,  it  shall  be  assigned  by  a  jury  of 
three  persons  qualified  to  act  as  jiu-ors,  unless  one  of  the 
parties  demand  a  greater  number,  not  exceeding  twelve, 
who  shall  be  summoned  by  the  sheriff  to  meet  on  the 
premises  or  some  part  thereof,  and  being  duly  sworn  by 
the  sheriff  or  other  person  authorized  to  administer 
oaths,  shall  proceed  to  allot  and  set  apart  to  the  widow 
her  dower  in  said  premises  according  to  law  and  make 


Chap.  53.]  WIDOWS. 

report  of  their  proceedings  under  their  hands  within  hve 
days  to  the  clerk  of  the  superior  court. 

Askew  V.  Bynum,  81 — 350. 

Sec.  2114.  Notices  to  sucli  parties.    1868-'9,  c.  93,  s.  43. 

The  parties,  or  their  attorneys,  to  such  proceeding,  if 
within  the  county,  shall  be  notified  of  the  time  and  place 
of  meeting  of  the  jury  appointed  to  assign  dower,  at 
least  five  days  before  the  meeting. 

Sec.  2115.  Bona  fide  conveyances  not  affected,  when, 
lS69-'70,  c.  153. 

The  act  of  the  general  assembly  entitled  "An  act 
restoring  to  married  women  their  common  law  rights  of 
dower,"  chapter  fifty-four,  ratified  on  the  second  day  of 
March,  one  thousand  eight  hundred  and  sixty-seven, 
shall  not  be  so  construed  as  to  affect  the  right  or  title  of 
any  person  claiming  real  estate  under  a  conveyance  made 
within  thirty  days  after  the  passage  of  the  said  act,  but 
all  such  conveyances  shall  have  the  like  force  and  effect 
as  if  the  said  act  had  been  enacted  to  take  effect  at  the 
end  of  thirty  days  after  the  passage  of  the  same. 

Sec.  2116.  Wliat  widows  entitled  to  a  year's  support;  her 
year's  allowance.  18C8-'9,  c.  93,  s.  8.  1871-'2,  c. 
193,  s.  44.     1880,  c.  42. 

Every  widow  of  an  intestate,  or  of  a  testator  from  whose 
will  she  has  dissented,  shall  be  entitled,  besides  her  dis- 
tributive share  in  her  husband's  personal  estate,  to  an 
allowance  therefrom,  for  the  support  of  herself  and  her 
family  for  one  year  after  his  decease,  and  said  allowance 
shall  be  exempt  from  any  lien,  by  judgment  or  execution 
acquired  against  the  property  of  her  said  husband:  Pi-o- 
vided,  if  any  married  woman  siiall  commit  adultery,  and 
shall  not  be  living  with  her  husband  at  his  death,  she  shall 
thereby  lose  all  right  to  a  year's  provision,  and  to  a  dis- 
tributive share  from  the  personal  pi'0]ieityof  her  husband, 
and  such  adultery  may  be  pleaded  in  bar  of  any  action  or 
proceeding  for  the  recovery  of  such  i-ights  and  estates. 

AValters  v.  Jorilan,  12  Irecl.,  170;  Kogers  exjwrte,  08—110;  Tinnn  ex  parte, 
63^137;  Bolin  V.  Baker,  75 — 47;  James  v.  James,  70 — 331;  Cook  v.  Sex- 
ton, 79—305;  Grant  V.  Hughes,  83—310;  Long  v.  Long,  85—415. 

Sec.  2117.  From  what  assig-iied.     18C8-'9,  c.  93,  s.  9. 

Such  allowance  shall  be  assigned  from  the  crop,  st'^ck 
and  provisions  of  the  deceased  in  his  possession,  at  the 
time  of  his  death,  if  there  be  a  sufficiency  thereof  in 


-v 


812  WIDOWS.  [Chap.  53. 

value;  and  if  there  be  a  deficiency,  it  shall  be  made  up 
by  the  personal  representative  from  the  personal  estate 
of  the  deceased. 

Sec.  2118.  Value  of  the  allowance.     lS68-'9,  c.  93,  s.  10. 

Except  in  cases  in  which  a  larger  allowance  is  herein- 
after provided  for,  the  value  of  a  year's  allowance  shall  be 
three  hundred  dollars,  and  one  hundred  dollars  in  addition 
thereto  for  every  member  of  the  familj'  besides  the 
widow. 

Cook  V.  Sexton,  79—305. 

Sec.  2119.  Family  tlefinert.     18C8-'9,  c.  93,  s.  11. 

The  family  of  the  deceased,  for  the  purposes  of  this 
chapter,  shall  be  deemed  to  be,  besides  the  widow,  every 
child,  eitlier  of  the  deceased  or  of  the  widow,  and  every 
other  person  to  whom  the  deceased  or  widow  stood  in 
place  of  a  parent,  who  was  residing  with  the  deceased  at 
his  death,  and  whose  age  did  not  then  exceed  fifteen 
years. 

Sec.  2120.  Duty  of  the  aduiluistrator,  &c.,  to  assign. 
1868-'9,  c.  93,  s.  12. 

It  shall  be  the  duty  of  every  administrator,  collector,  or 
executor  of  a  will,  from  which  the  widow  of  a  testator  has 
dissented,  on  application  in  writing,  signed  by  the  widow 
of  such  intestate  or  testator,  at  any  time  within  one  year 
after  the  decease  of  tlie  husband,  to  assign  to  her  a  year's 
allowance  in  the  manner  prescribed  in  this  chapter,  to  the 
value  herein  prescribed,  deducting  therefrom  the  value  of 
any  articles  consumed  by  the  widow  and  her  family  since 
the  death  of  her  husband  to  the  time  of  the  assignment. 

Cook  V.  Sexton,  79—305. 

Sec.  2121.  How  value  of  articles  assigned  to  be  ascer- 
tained.   1868-'9,  c.  93,  s.  13. 

The  value  of  stock,  crop  and  provisions  assigned  to  the 
widow,  as  well  as  that  of  the  articles  consumed,  shall  be 
ascertained  by  a  justice  of  the  peace  an(i  two  persons 
quahfied  to  act  as  jurors  of  the  county  in  which  adminis- 
tration was  granted  or  the  will  pi'ovod. 

Sec.  2122.  Upon  application  ot  widow,  personal  repre- 
.sentative  to  apply  to  .justice  of  the  towiLship,  &c.;  pro- 
viso.    1870-'71,c.  200. 

Upon  the  application  of  the  widow,  the  personal  repre- 
sentative of  the  deceased  shall  apply  to  a  justice  of  the 
peace  of  the  township  in  which  the  deceased  resided,  or 


Chap.  53.]  WIDOWS.  813 

some  adjoining  townsliip,  to  summon  two  persons  quali- 
fied to  act  as  jurors,  who  having  been  sworn  by  the  jus- 
tice to  act  impartially,  shall,  with  him,  ascertain  the 
number  of  the  family  of  the  deceased  according  to  the 
definition  given  in  this  chapter,  and  examine  his  stock, 
crop  and  provisions  on  hand,  and  assign  to  the  widow  so 
much  thereof  as  will  not  exceed  the  value  limited  in  this 
chapter,  subject  to  the  deduction  prescribed  in  this  chap- 
ter: Provided,  that  in  case  there  shall  be  no  administra- 
tion upon  said  estate,  or  if  the  widow  shall  be  the  personal 
representative,  she  may  make  the  application,  and  it  shall 
be  the  duty  of  the  justice  to  proceed  in  the  same  manner 
as  though  the  application  had  been  made  by  the  personal 
representative:  Provided,  further,  that  in  all  cases,  if 
there  be  no  crop,  stock  or  provisions  on  hand,  or  not  a 
sufficient  amount,  the  commissioners  may  allot  to  the 
widow  any  articles  of  personal  property  of  the  deceased, 
and  also  any  debt  or  debts  known  to  be  due  him,  and  such 
allotment  shall  vest  in  the  widow  said  property,  and  the 
right  to  collect  the  debts  thus  allotted. 

Irvin  V.  Hughes,  83—210. 


Sec.  3123.  Duty  of  the  commissioners.      1868-'9,  c.  93, 
s.  15. 

The  commissioners  shall  make  and  sign  three  lists  of 
the  articles  assigned  to  the  widow,  stating  the  quantity 
and  value  of  each,  the  number  of  the  family,  and  the  de- 
ficiency to  be  paid  by  the  personal  representative.  One 
of  these  lists  shall  be  delivered  to  the  widow,  one  to  the 
personal  representative  and  one  returned  by  the  justice, 
within  twenty  days  after  the  assignment  to  the  sujDerior 
court  of  the  county,  and  the  clerk  shall  file  and  record 
the  same  and  enter  judgment  against  the  personal  repre- 
sentative, to  be  paid  when  assets  shall  come  into  his 
hands,  for  any  residue  found  in  favor  of  the  widow. 

Irviii  V.  Ilun-lies,  82 — 210;  Lon^v.  Loni;,  85 — 415. 


Sec.  2124.  Appeal  may  be  taken  to  superior  court.  1868- 
'9,  c.  93,  s.  16. 

The  personal  representative,  or  the  widow,  or  any 
creditor,  legatee  or  distributee  of  the  deceased,  may  ap- 
peal from  the  finding  of  the  commissioners  to  the  supe- 
rior court  of  the  county,  and  cite  the  adverse  party  to 
appear  before  such  court  on  a  certain  day,  ■within  ten 
days  from  the  assignment. 


814  WIDOWS.  [Chap.  53. 

Sec.  2125.  Duty  of  appellant.    1868-'9,  c.  93,  s.  17. 

At  or  before  the  day  named,  the  appellant  shall  file 
with  the  clerk  a  copy  of  the  assignment  and  a  statement 
of  his  exceptions  thereto,  and  the  issues  thereby  raised 
shall  be  decided  as  other  issues  are  directed  to  be;  when 
the  issues  shall  have  been  decided,  judgment  shall  be  en- 
tered accordingly,  if  it  may  be  without  injustice,  with- 
out remitting  the  proceedings  to  the  commissioners. 

Sec.  2126.  Sum  allowed  widow  to  be  credited  to  execu- 
tor, &c.,  unless  impeached  for  fraud.  18G8-'9,  c.  93, 
s.  18. 

Upon  the  settlement  of  the  accounts  of  the  personal 
representative,  he  shall  be  credited  with  the  articles  as- 
signed, and  the  value  of  the  deficiency  assessed  as  afore- 
said, if  the  same  shall  have  been  paid,  unless  the  allow- 
ance be  impeached  for  fraud  or  gross  negligence  in  him. 

Sec.  2127.  When  above  allowance  shall  be  in  full.  1868- 
'9,  c.  93,  s.  19. 

If  the  estate  of  a  deceased  be  insolvent,  or  if  his  per- 
sonal estate  does  not  exceed  two  thousand  dollars,  the  al- 
lowance for  the  year's  support  of  his  widow  and  her 
family  shall  not,  in  any  case,  exceed  the  value  prescribed 
above;  and  the  allowance  made  to  her  as  above  pre- 
scribed, shall  preclude  her  from  any  further  allowance. 

Cook  V.  Sexton,  79—305. 

Sec.  2128.  When  allowance  not  in  full.  1868-'9,  c.  93, 
s.  20. 

It  shall  not,  however,  be  obligatory  on  a  widow  to  have 
her  support  assigned  as  above  prescribed.  Without  ap- 
plying to  the  personal  representative  of  her  deceased 
husband,  she  may,  at  any  time  within  one  year  after  the 
death  of  her  husband,  apply  to  the  superior  court  of  the 
county  in  which  the  will  was  proved,  or  administration 
granted,  to  have  a  year's  support  for  hei-self  and  her  fam- 
ily assigned  to  her. 

Cook  V.  Sexton,  79—305. 

Sec.  2129.  Application  to  be  made  by  summons,  &c.  1868- 
'9,  c.  93,  s.  21. 

The  application  shall  be  by  summons,  as  is  pre- 
scribed for  special  proceedings,  in  which  the  personal 
representative  of  the  deceased  if  there  be  one  other  than 
the  plaintiff,  the  largest  known  creditor,  or  legatee,  or 
some  distributee  of  the  deceased,  living  in  the  county, 


Chap.  53.]  WIDOWS.  815 

shall  be  made  defendant,  and  the  proceedings  shall  be  as 
prescribed  for  special  proceedings  between  parties. 

Sec.  3130.  What  to  l>e  set  forth  in  complaint.     1868-'9,  c. 
93,  s.  33. 

In  her  complaint  the  widow  shall  set  forth,  besides  the 
facts  entitling  her  to  a  year's  support  and  the  A^alue 
thereof,  as  claimed  by  her,  the  further  facts,  that  the 
estate  of  the  deceased  is  not  insolvent,  and  that  the  per- 
sonal estate  of  which  he  died  possessed  exceeded  two 
thousand  dollars,  and  also  whether  or  not  she  had  an 
allowance  made  her,  and  the  nature  and  value  thereof; 
and  if  no  allowance  has  been  made,  the  quantities  and 
values  of  the  articles  consumed  by  her  and  her  family 
since  the  death  of  her  husband. 

Cook  V.  Sexton,  79—305. 

Sec.  3131.  What  judgment  shall  be  given.    1868-'9,  c.  93, 

s.  33. 
If  the  material  allegations  of  the  complaint  be  found 
true,  the  judgment  shall  be  that  she  is  entitled  to  the 
rehef  sought;  and  the  court  shall  thereupon  issue  an  order 
to  the  sheriff  or  other  proper  officer  of  the  county,  com- 
manding him  to  summon  a  justice  of  the  peace  and  two 
indifferent  persons  qualified  to  act  as  jurors  of  the  county, 
to  assign  to  the  plaintiff  from  the  crop,  stock,  and  pro- 
visions of  the  deceased,  a  sufficiency  for  the  support  of 
herself  and  her  family,  for  one  year  from  the  death  of 
her  husband;  and  if  there  be  a  deficiency  thereof  to  assess 
such  deficiency,  to  be  paid  by  the  personal  representa- 
tive from  the  personal  assets  of  the  deceased;  deducting, 
nevertheless,  in  all  cases  from  such  allowance  the 
articles,  or  the  value  thereof,  consumed  by  the  widow 
and  her  family  before  such  assignment,  and  also  any  sum 
previously  assigned  her. 

Sec.  3133.  Duty  of  commissioners;  how  report  returned. 
1868-'9,  c.  93,  s.  34. 

The  said  commissioners  shall  be  sworn  by  the  justice 
and  shall  proceed  as  prescribed  in  this  chapter,  except 
that  they  may  assign  to  the  widow  a  value  sufficient 
for  the  support  of  herself  and  her  family  according  to  the 
estate  and  condition  of  her  husband  and  without  regard 
to  the  limitation  aforesaid  in  this  chapter;  but  the  value 
allowed  shall  not  in  any  case  exceed  the  one-half  of  the 
annual  net  income  of  the  deceased  for  three  years  next 
preceding  his  death.  Their  report  shall  be  returned  by 
the  justice  to  the  court. 


816  WILLS  AND  TESTAMENTS.      [Chap.  54. 

Sec,  2133.  Party  interested  may  except.     1868-'9,  c.  93, 
s.  35. 

The  personal  representative,  or  any  creditor,  distributee 
or  legatee  of  the  deceased,  within  twenty  days  after  the 
return  of  the  report,  may  file  exceptions  thereto;  the 
plaintiff  shall  be  notified  thereof  and  cited  to  appear 
before  the  court  on  a  certain  day,  witliin  twenty,  and  not 
less  than  ten  days  after  service  of  the  notice  and  answer 
the  same,  the  case  shall  thereafter  be  proceeded  in,  heard, 
and  decided  as  provided  in  special  proceedings  between 
parties. 

See.  3134.  If  tlie  report  confirmed,  what  judgment  and 
execution;  costs.     1868-'9,  c.  93,  s.  36. 

If  the  report  shall  be  confirmed,  the  court  shall  so  de- 
clare, and  execution  shall  issue  to  enforce  the  judgment, 
as  in  like  cases;  and  in  sucii  proceeding  the  costs  shall 
be  in  the  discretion  of  the  court. 

Sec.  3135.  Fees   of   commissioners,  slieriflf  and    justice. 
1868-'9,  c.  93,  s.  38. 

The  fees  of  the  justice,  and  commissioners,  and  sheriff, 
each,  shall  be  one  dollar  for  the  assignment;  the  other 
fees  and  costs  shall  be  as  prescribed  in  other  cases. 


CHAPTEE  FIFTY-FOUR. 
WILLS  AND  TESTAMENTS. 


Section. 

2136.  Wills  of  real  and  personal  es- 
tate, how  executed. 

2137.  Ages  of  testators  and  exec- 
tors. 

2138.  Wills  of  married  women,  how 
and  wliore  proved. 

2139.  Appointments  by  will  execu- 
ted as  wills;  valid,  though 
other  required  forms  be  not 
observed. 

2140.  All  property,  rights  and  inter- 
ests may  be  disposed  of  by 
will. 


Section. 

2141.  Wills  to  speak  at  the  death  of 
testator. 

2142.  Lapsed  and  void  devises  to 
pass  under  residuary  clause. 

2143.  A  general  gift  to  include  es- 
tates which  testator  has  power 
to  appoint. 

2144.  Gifts  to  issue  dying  and  leav- 
ing issue. 

2145.  Children  born  after  parent's 
will  executed. 

2146.  Executor  competent  wit- 
ness. 


d  -^ 


Chap.  5-t.]     WILLS  AND  TESTAMENTS. 


817 


Section. 

2147.  Devises,  &c.,  to  witnesses 
void. 

2148.  How  -wills  admitted  to  pro- 
bate. 

2149.  Proofs  and  examinations  in 
writing. 

2150.  Probate,  liow  far  conclusive. 

2151.  Wlio  may  apply  for  probate. 

2152.  Who  may  apply  when  execu- 
tor does  not. 

2153.  What  to  be  shown  on  applica- 
tion. 

2154.  Production  of  will  compelled 
'  by  process. 

2155.  Will  made  without  the  state, 
how  proved. 

2156.  Will  of  citizen  or  subject  of 
another  country,  how  allowed 
and  recorded  in  this  state. 

2157.  Will  of  citizen  of  this  state 
proved  elsewhere,  how  proved 
and  recorded  here. 

2158.  Caveat. 

2159.  Transfer    to    superior  court, 

when. 

2160.  Order  to  suspend  proceedings. 
3161.  Costs,  how  paid. 

2162.  Who  is  disqualified  to  serve  as 
executor. 

2163.  Executor  may  renounce. 

2164.  When  executor  deemed  to 
have  renounced. 

2165  Executor  under  disqualifica- 
tion of  age  or  absence. 


Section. 

2166.  Letters  of  administration  with 
the  will  annexed  to  be  granted, 
when  and  to  whom. 

2167.  Qualifications,  &c..  of  such 
administrators. 

2168.  Will  of  testator  to  be  ob- 
served. 

2169.  Oaths,  &c. 

2170.  Revocation  of  letters  on  proof 
of  will,  &c. 

2171.  Revocation  on  ground  of  dis- 
qualification or  default. 

2172.  Letters,  how  issued  and  tested. 

2173.  Wills  filed  in  clerk's  office. 
3174.  No  will  effectual  without  pro 

bate;  certified  copy,  where  re- 
corded; probate,  conclusive, 
when. 

2175.  Copies  of  wills  evidence. 

2176.  Written  wills,  how  revoked. 

2177.  Revoked  by  marriage. 

3178.  Not  by  altered  circumstances. 

2179.  Nor  by  conveyances  after  will 
executed. 

3180.  Devises  construed  to  be  in 
fee,  unless  the  contrary  ap- 
pear. 

3181  Copies  of  wills  in  the  office  of 
secretary  to  be  evidence;  pro- 
viso. 

3182.  Registry  of  wills  recorded  in 
wrong  county  evidence. 

3183.  Copy  of  lost  or  destroyed  wills 
evidence,  when. 


Sec.  2136.  Wills  of  real  and  personal  estate,  how  exe- 
cuted. R.  C,  c.  119,  s.  1.  1784,  c.  204,  s.  11.  1784, 
c.  225,  s.  5.     1840,  c.  62.     1846,  c.  54. 

No  last  will  or  testament  shall  be  good  or  sufficient,  in 
law,  to  convey  or  give  any  estate,  real  or  personal,  unless 
such  last  will  shall  have  been  written  in  the  testator's 
lifetime,  and  signed  by  him,  or  by  some  other  person  in 
his  presence  and  by  his  direction,  and  subscribed  in  his 
presence  by  two  witnesses  at  least,  no  one  of  whom  shall 
be  interested  in  the  devise  or  bequest  of  the  said  estate, 
except  as  hereinafter  provided.  Or,  unless  such  last  will 
and  testament  be  found  among  the  valuable  papers  and 
35 


818  WILLS  AND  TESTAMENTS.     [Chap.  .5i. 

effects  of  any  deceased  person,  or  shall  have  been  lodged 
in  the  hands  of  any  person  for  safe-keeping,  and  the 
same  shall  be  in  the  handwriting  of  such  deceased  person, 
with  his  name  subscribed  thereto,  or  inserted  in  some 
part  of  such  will;  and  if  such  handwriting  shall  be 
proved,  by  three  credible  witnesses,  who  verily  believe 
such  will  and  every  part  thereof  is  in  the  handwriting  of 
the  person  whose  will  it  appears  to  be,  then  such  will 
shall  be  sufficient  to  give  and  convey  real  and  personal 
estate. 

Rogers  v.  Biiley,  1  Hay.,  256;  Eelbeck  v.  Granberry,  2  Hay.,  232;  Rhea 
V.  Executors,  2  Hay.,  342:  Bateman  v.  Masiner,  1  Mur.,  176;  Jiggitts  v. 
Maney,  1  Mur.,  2.58;  Harrison  v.  Burgess,  1  Hawks,  384;  JIartin  v. 
Hough,  2  Hawks,  368;  Allison  v.  Allison,  4  Hawks,  141;  Galloway  v. 
Yates,  1  Dev,,  266;  Thompsou  v.  McDonald,  2  D.  &  B.  Eq.,  463;  Lunsford 
V.  Alexander,  3  D.  &B.,  40;  Ragland  v.  Huntington,  llrod.,  561;  St.  John's 
Lodge  V.  Callender,  4Ired.,  335;  Murray  v.  Olliver,  6  Ired.  Eq.,  55;  Tre.xler 
V.  Miller,  6  Ired.  Eq.,  248;  Battle  v.  Speight,  9  Ired.,  288;  Graham  v.  Gra- 
ham, 10  Ired.,  219;  Bynum  v.  Bynum,  11  Ired.,  632;  Love  v.  Johnston,  13 
Ireil.,  355;  Pridgen  v.  Pridgen,  13  Ired.,  259;  Kirby  v.  Kirby,  Busb.,  454; 
Outlaw  V.  Hurdle,  1  Jon.,  150;  Cox's  Will,  7  Jon.,  321;  Jones  v.  Tuck,  3 
Ji.n.,  202;  Gunter  v.  Gunter,  3  Jon.,  441;  Bristol  v.  Beaver,  3  Jon.,  516; 
Malloy  V.  McNair,  4  Jon.,  297;  Gaither  v.  Ballew,  4  Jon.,  488;  Little  y. 
Lockman,  4  Jon.,  494;  Grigg  v.  'Williams,  6  Jon.,  518;  Sawyer  v.  Sawyer, 
7  Jon.,  134;  Cornelius  V.  Cornelius,  1  Jon.,  563;  Adams  v.  Clard,  8  Jon..  56; 
Hill  V.  Bell,  Phil.,  122;  "Wood  v.  Sawyer,  Phil.,  251;  Smith  v.  Smith,  63— 
637;  Smithdeal  v.  Smith,  64—52;  Hughes  v.  Smith,  64—493;  Belcher's 
Will,  66—51;  "Winstead  v.  Bowman,  68—170;  Donoho  v.  Patterson,  70— 
649 ;  Mayo  v.  Jones,  78—402. 


Sec.  2137.  Ages  of  testators  and  executors.  R.  C,  c.  119, 
s.  3.     1811,  c.  830. 

No  person  shall  be  capable  of  disposing  of  real  or  per- 
sonal estate  by  will,  nor  be  allowed  to  qualify  as  executor 
of  a  will,  until  he  shall  have  attained  the  age  of  twenty- 
one  years. 

Williams  v.  Baker.  2  C.  L.  Repos.,  599. 

Sec.  2138.  Wills  of  married  woiuen,  how  and  when  prov- 
ed.   K.  C,  c.  119,  s.  3.     1844,  c.  88,  s.  8. 

A  married  woman  OAvning  real  or  personal  property 
may  dispose  of  the  same  by  will,  subject  to  the  husband's 
right  of  courtesy. 

Newlin  v.  Freeman,  1  Ired.,  514;  'Whitfield  v.  Hurst,  3  Ired.  Eq.,  243; 
Whitfield  V   Hurst,  9  Ired.,  170;  Long  v.  Barnes,  87—829. 


Chap.  54.]     WILLS  AND  TESTAMENTS.  819 

Sec.  2139.  Appointments  by  will  executed  like  wills; 
valid  tliougli  other  required  forms  be  not  observed.  R. 
C,  C.119,  s.  4.     1844,  c.  88,  s.  9. 

No  appointment,  made  by  will  in  exercise  of  any 
power,  shall  be  valid,  unless  the  same  be  executed  in  the 
manner  by  law  required  for  the  execution  of  wills;  and 
every  will,  executed  in  such  manner,  shall,  so  far  as 
respects  the  execution  and  attestation  thereof  be  a  valid 
execution  of  a  power  of  appointment  by  will,  notwith- 
standing it  shall  have  been  expressly  required,  that  a 
will  made  in  exercise  of  such  power  should  be  executed 
with  some  additional  or  other  form  of  execution  or 
solemnity. 

Sec.  2140.  All  property,  rights  and  interests  may  be 
disposed  of  by  will.    B.  C,  c.  119,  s.  5.     1844,  c.  88, 

s.  1. 

Any  testator,  by  his  will  duly  executed,  may  devise, 
bequeath,  or  dispose  of  all  real  and  personal  estate,  which 
he  shall  be  entitled  to  at  the  time  of  his  death,  and 
which,  if  not  so  devised,  bequeathed,  or  disposed  of, 
would  descend  or  devolve  upon  his  heirs  at  law,  or  upon 
his  executor  or  administrator;  and  the  power  hereby 
given  shall  extend  to  all  contingent,  executory,  or 
other  future  interest  in  any  real  or  personal  estate, 
whether  the  testator  may  or  may  not  be  the  person  or 
one  of  the  persons,  in  whom  the  same  may  become 
vested,  or  whether  he  may  be  entitled  thereto  under  the 
instrument  by  which  the  same  was  created,  or  under 
any  disposition  thereof  by  deed  or  will;  and  also  to  aU 
rights  of  entry  for  conditions  broken,  and  other  rights  of 
entry;  and  also  to  such  of  the  same  estates,  interests,  and 
rights  respectively,  and  other  real  and  personal  estate,  as 
the  testator  may  be  entitled  to,  at  the  time  of  his  death, 
notwithstanding  that  he  may  become  entitled  to  the  same 
subsequently  to  the  execution  of  his  will. 

Champiou  et  ah.  ex  pa/rte,  Busb.  Eq.,  246. 

Sec.  2141.  Wills  to  speak  as  at  death  of  testator.  K.  C, 
c.  119,  s.  6.     1844,  c.  88,  s.  3. 

Every  will  shall  be  construed,  with  reference  to  the 
real  and  personal  estate  comprised  therein,  to  speak  and 
take  effect,  as  if  it  had  been  executed  immediately  before 
the  death  of  the  testator,  unless  a  contrary  intention 
shall  appear  by  the  will. 

^VUliams  v.  Davis,  ISIred.,  31;  Champion  etaU. ex  parte,  Busb.  Eq.,  246; 


820  WILLS  AND  TESTAMENTS.      [Chap.  54. 

Robbins  v.  Windly,  3   Jon.  Eq.,  286;  Nooe  v.  Vannoy,  6  Jon.  Eq.,  185; 
Radford  v.  Elmore,  84—424. 

Sec.  2142.  Lapsed  and  void  devises  to  pass  under  residu- 
ary clause.     R.  C,  c.  119,  s.  7.     1844,0.88,8.4. 

Unless  a  contrary  intention  shall  appear  by  tho  will, 
such  real  estate  or  interest  therein,  as  shall  be  comprised, 
or  intended  to  be  comprised,  in  any  devise  in  such  will 
contained,  which  shall  fail  or  be  void  by  reason  of  the 
death  of  the  devisee  in  the  lifetime  of  the  testator,  or  by 
reason  of  such  devise  being  contrary  to  law  or  otherwise 
incapable  of  taking  effect,  shall  be  included  in  the  resi- 
duary devise  (if  any)  contained  in  such  will. 

Sec.  2143.  A  general  gift  to  include  estates  which  testator 
has  i)Ower  to  appoint.  R.  C,  c.  1 19,  s.  8.  1844,  c.  88, 
s.  5. 

A  general  devise  of  the  real  estate  of  the  testator,  or  of 
his  real  estate  in  any  place  or  in  the  occupation  of  any 
person  mentioned  in  the  will,  or  otherwise  described  in  a 
general  manner,  shall  be  construed  to  include  any  real 
estate,  or  any  real  estate  to  which  such  description  shall 
extend  (as  the  case  may  be),  which  he  may  have  power 
to  appoint  in  any  manner  he  may  think  proper;  and  shall 
operate  as  an  execution  of  such  power,  unless  a  contrary 
intention  shall  appear  by  the  will;  and  in  like  manner  a 
bequest  of  the  personal  estate  of  the  testator,  or  any  be- 
quest of  personal  property,  described  in  a  general  manner, 
shall  be  construed  to  include  any  personal  estate,  or  any 
personal  estate  to  which  such  description  shall  extend  (as 
the  case  may  be),  which  he  may  have  power  to  appoint 
in  any  manner  he  may  think  proper,  and  shall  operate  as 
an  execution  of  such  power,  unless  a  contrary  intention 
shall  appear  by  the  will. 

Sec.  2144.  Gifts  to  issue  dying  and  leaving  issue.  1868- 
'9,  c.  113,  s.  61. 

When  any  person,  being  a  child  or  other  issue  of  the 
testator,  to  whom  any  real  or  personal  estate  shall  be  de- 
vised or  bequeathed  for  any  estate  or  interest  not  deter- 
minable at  or  before  the  death  of  such  person,  shall  die 
in  the  lifetime  of  the  testator,  leaving  issue,  and  any  suc-h 
issue  of  such  person  as  shall  be  living  at  the  death  of  the 
testator,  such  devise  or  bequest  shall  not  lapse,  but  shall 
take  effect  and  vest  a  title  to  such  estate  in  the  issue  sur- 
viving, if  there  be  any,  in  the  same  manner,  proportions 
and  estates  as  if  the  death  of  such  person  had  happened 


Chap.  54.]     WILLS  AND  TESTAMENTS.  821 

immediately  after  the  death  of  the  testator,  unless  a  con- 
trary intention  shall  appear  by  the  will. 

Hester  v.  Hester,  2  Ired.  Eq.,  330;  Lindsay  v.  Pleasants,  4Ired.  Eq.,  330; 
"Williamson  v.  Williamson,  4  Jon.  Eq.,  281;  Smith  v.  Smith,  5  Jon.  Eq., 
305;  Scales  v.  Scales,  6  Jon.  Eq.,  163;  Lcfler  v.  Rowland,  Phil.  Eq.,  143; 
Whitehead  v.  Thompson,  79 — 450;  Gordon  v.  Pendleton,  84—98. 

Sec.  2145.  Clxild  born  after  parent's  will  executed.  1868- 
'O,  c.  113,  s.  62. 

Children  born  after  the  making  of  the  parent's  will, 
and  whose  parent  shall  die  without  making  any  provis- 
ion for  them,  shall  be  entitled  to  such  share  and  propor- 
tion of  said  parent's  estate  as  if  he  or  she  had  died  intes- 
tate, and  the  rights  of  any  such  after-born  child  shall  be 
a  lien  on  every  part  of  the  parent's  estate,  untU  his  sev- 
eral share  thereof  is  set  apart  in  the  manner  prescribed 
in  this  chapter. 

Johnson  v.  Chapman,  Busb.  Eq.,  213;  Windley  v.  Gaylord,  7  Jon.,  55. 

Sec.  2146.  Executor  a  competent  witness.    B.  C,  c.  119, 
s.  9. 

No  person,  on  account  of  being  an  executor  of  a  wOl, 
shall  be  incompetent  to  be  admitted  a  witness  to  prove 
the  execution  of  such  wiU,  or  to  prove  the  validity  or  in- 
valdity  thereof. 

Paunell  v.  Scoggln,  8  Jon.,  408. 

Sec.  2147.  Devise  and  bequests  to  witnesses  void.    B.C., 
c.  119,  s.  10. 

If  any  person  shall  attest  the  execution  of  any  will,  to 
whom  or  to  whose  wife  or  husband  any  beneficial  devise, 
estate,  interest,  legacy,  or  appointment  of  or  affecting 
any  real  or  personal  estate  shall  be  thereby  given  or 
made,  such  devise,  estate,  interest,  legacy,  or  appoint- 
ment shall,  so  far  only  as  concerns  such  person  attesting 
the  execution  of  such  will  or  the  wife  or  husband  of  such 
person,  or  any  person  claiming  under  such  person,  or 
wife  or  husband,  be  void;  and  such  person  so  attesting, 
shall  be  admitted  as  a  witness  to  prove  the  execution  of 
such  will,  or  the  validity  or  invalidity  thereof. 

McLean  v.  Elliott,  72—70. 

Sec.  2148.  How  wills  admitted  to  probate.     C.  C.  P., 
s.  435. 

Wills  and  testaments  must  be  admitted  to  probate  only 
in  the  following  manner: 
(1)  In  case  of  a  written  will,  with  witnesses,  on  the 


822  WILLS  AND  TESTAMENTS.     [Chap.  54. 

oath  of  at  least  two  of  the  subscribing  witnesses,  if  living; 
but  when  any  one  or  more  of  the  subscribing  witnesses 
to  such  will  are  dead,  or  reside  out  of  the  state,  or  are 
insane  or  otherwise  incompetent  to  testify,  then  such 
proof  may  be  taken  of  the  hand\vriting,  both  of  the 
testator  and  of  the  witness  or  witnesses  so  dead,  absent, 
insane  or  incompetent,  and  also  of  such  other  circum- 
stances as  will  satisfy  the  clerk  of  the  superior  court  of 
the  genuineness  and  the  due  execution  of  such  will. 

(2)  In  case  of  a  holograph  will,  on  the  oath  of  at  least 
three  credible  witnesses,  who  state  that  they  verily  be- 
lieve such  will  and  every  part  thereof  is  in  the  hand- 
wi-iting  of  the  person  whose  will  it  purports  to  be,  and 
whose  name  must  be  subscribed  thereto,  or  inserted  in 
some  part  thereof.  It  must  further  appear  on  the  oath 
of  some  one  of  said  witnesses,  or  of  some  other  credible 
person,  that  such  will  was  found  among  the  valuable 
papers  and  effects  of  the  decedent,  or  was  lodged  in  the 
hands  of  some  person  for  safe  keeping. 

Winstead  v.  Bowman,  68 — 170. 

(3)  In  case  of  a  nuncupative  will,  on  the  oath  of  at 
least  two  credible  witnesses  present  at  the  making  there- 
of, who  state  that  they  were  specially  required  to  bear 
witness  thereto  by  the  testator  himself.  It  must  also  be 
proved  that  such  nuncupative  will  was  made  in  the  testa- 
tor's last  sickness,  in  his  own  habitation,  or  where  he  had 
been  previously  resident  for  at  least  ten  days,  unless  he 
died  on  a  journey  or  from  home.  No  nuncupative  will 
shall  be  proved  by  the  witnesses  after  six  months  from 
the  making  thereof,  unless  it  was  put  in  writing  within 
ten  days  from  such  making;  nor  shall  it  be  proved  till  a 
citation  has  been  first  issued  or  publication  been  made 
for  six  weeks  in  some  newspaper  published  in  the  state, 
to  call  in  the  widow  and  next  of  kin  to  contest  such  will 
if  they  think  proper. 

Wester  v.  Wester,  5  .Jon.,  95;  Leatherwood  v.  Bojd,  Winst.,  123;  Smith 
v.  Smith,  63—637;  Smithdeal  v.  Smith,  64— 52;  Belcher's  Will,  66— .M ; 
Syme  v.  Broughton,  85—367. 

Sec.  2149.  Proofs  and  examinations  in  writing.    C.  C.  P., 
s.  437. 

Every  clerk  of  the  superior  court  shall  take  in  writing 
the  proofs  and  examinations  of  the  witnesses  touching 
the  execution  of  a  will;  and  h«  shall  embody  the  substance 
of  such  proofs  and  examinations,  in  case  the  will  is  ad- 
mitted to  probate,  in  his  certificate  of  the  probate  there- 
of,   which   certificate   must  be   recorded  with  the  will. 


Chap.  54.]      WILLS  AND  TESTAMENTS.  823 

The  proofs  and  examinations  as  taken  must  be  filed  in 
the  office. 

Elheridge  v.  Corprew,  3  Jon.,  14. 

Sec.  2  ISO.  Probate,  bow  far  conclusive,     C.  C.  P.,  s.  438. 

Such  record  and  probate  is  conclusive  in  evidence  of 
the  validity  of  the  will,  until  it  is  vacated  on  appeal  or 
declared  void  by  a  competent  tribunal. 

Mayo  V.  Jones,  78—403;  Syrae  v.  Brougbton,  85—367. 

Sec.  2151.  Who  may  apply  for  probate.    C.  C.  P.,  s.  439. 

Any  executor  named  in  a  will  may,  at  any  time  after 
the  death  of  the  testator,  apply  to  the  clerk  of  the  su- 
perior court,  having  jurisdiction,  to  have  the  same  ad- 
mitted to  probate. 

Sec.  2152.  Who  may  apply  when  executor  does  not.     C. 
C.  P.,  s.  440. 

If  no  executor  apply  to  have  the  vs^ill  proved  within 
sixty  davs  after  the  death  of  the  testator,  any  devisee  or 
legatee  named  in  the  will,  or  any  other  person  interested 
in  the  estate,  may  make  such  application,  upon  ten  days' 
notice  thereof  to  the  executor. 

Sec.  2153.  What  to  be  shown  on  application.    C.  C.  P.,  s. 
441. 

On  application  to  the  clerk  of  the  superior  court,  he 
must  ascertain  by  affidavit  of  the  applicant: 

(1)  That  such  apphcant  is  the  executor,  devisee  or  leg- 
atee named  in  the  will,  or  is  some  other  person  interested 
in  the  estate,  and  how  so  interested. 

(2)  The  value  and  nature  of  the  testator's  property,  as 
near  as  can  be  ascertained. 

(3)  The  names  and  residence  of  all  parties  entitled  to 
the  testator's  property,  if  known,  or  that  the  same  on 
diligent  inquiry  cannot  be  discovered;  which  of  said  par- 
ties in  interest  are  minors,  and  whether  with  or  Avithout 
guardians,  and  the  names  and  residence  of  such  guard- 
ians, if  known.  Such  affidavit  shall  be  recorded  with  the 
will  and  the  certificate  of  probate  thereof,  if  the  same  is 
admitted  to  probate. 

Sec.  2154.  Production  of  will  compelled  by  process.    C. 
C.  P.,  s.  442. 

Every  clerk  of  the  superior  court  having  jurisdiction, 
on  application  by  affidavit  setting  forth  the  facts,  shall, 
by  summons,  compel  any  person  in  the  state,  having  in 


824  WILLS  AND  TESTAMENTS.      [Chap.  54. 

possession  the  last  will  of  any  decedent,  to  exhibit  the 
same  in  his  court  for  probate;  and  whoever  being  duly 
summoned,  refuses  in  contempt  of  the  court,  to  produce 
such  wlU,  or  (the  same  having  been  parted  with  by  him) 
refuses  to  inform  the  court  on  oath  where  such  will  is,  or 
in  what  manner  he  has  disposed  of  it,  shall,  by  order  of 
the  clerk  of  the  superior  court,  be  committed  to  the  jail 
of  the  countj^,  there  to  remain  without  bail  till  such  will 
be  produced  or  accounted  for,  and  due  submission  made 
for  the  contempt. 

Sec.  2155.  Will  made  without  the  state,  how  proved.  C. 
C.  P.,  s.  443. 

Whenever  it  is  suggested  to  the  clerk  of  the  superior 
court,  by  affidavit  or  otherwise,  that  a  will  has  been  made 
without  the  state,  disposing  of  or  charging  land  oi-  other 
property  within  the  state,  the  clerk  of  the  superior  court 
of  the  county  where  the  property  is  situated  may  issue  a 
commission  to  such  person  as  he  may  select,  authorizing 
the  commissioner  to  take  the  examination  of  such  wit- 
nesses as  may  be  produced,  touching  the  execution  there- 
of, and  upon  return  of  such  commission,  with  the  exami- 
nation, he  may  adjudge  the  said  will  to  be  duly  proved 
or  otherwise,  as  in  cases  on  the  oral  examination  of  wit- 
nesses before  him,  and  if  duly  proved,  such  wiU  shall  be 
recorded. 

Sec.  2156.  Will  of  citizen  or  subject  of  another  country, 
how  allowed  and  recorded  in  this  state.  C.  C.  P.,  s. 
444.     1883,  c.  144. 

Whenever  any  will,  made  by  a  citizen  or  subject  of  any 
other  state  or  country,  is  duly  proved  and  allowed  in  such 
state  or  country,  according  to  the  laws  thereof,  a  copy  or 
exemplification  of  such  will,  duly  certified  and  authenti- 
cated by  any  ambassador,  minister,  consul  or  commercial 
agent  of  the  United  States  under  his  official  seal,  when 
produced  or  exhibited  before  the  clerk  of  the  superior 
court  of  any  county  wherein  any  property  of  the  testator 
may  be,  shall  be  allowed,  filed  and  recorded  in  the  same 
manner  as  if  the  original,  and  not  the  copy,  had  been 
produced,  proved  and  allowed  before  such  clerk.  But 
when  any  such  will  contains  any  devise  or  disposition  of 
real  estate  in  this  state,  such  devise  or  disposition  shall 
not  have  any  validity  or  operation,  unless  the  will  is  ex- 
ecuted according  to  the  laws  of  this  state;  and  that  fact 
must  appear  affirmatively  in  the  certified  probate  or  ex- 
emplification of  the  will;   and  if  it  do  not  so  appear,  the 


Chap.  54.]     WILLS  AND  TESTAMENTS.  825 

clerk  before  whom  the  copy  is  exhibited,  shall  have  power 
to  issue  a  commission  for  taking  proofs,  touching  the  ex- 
ecution of  the  will,  as  prescribed  in  the  preceding  section; 
and  the  same  may  Le  adjudged  duly  proved,  and  shall  be 
recorded  as  therein  provided. 

Sec.  2157.  Will  of  citizen  of  this  state  proved  elsewhere; 
how  proved  and  recorded  here.    C.  C.  P.,  s.  445. 

When  a  will,  made  by  a  citizen  of  this  state,  is  proved 
and  allowed  in  some  other  state  or  country,  and  the 
original  will  cannot  be  removed  from  its  place  of  legal 
deposit  in  such  other  state  or  country,  for  probate  in  this 
state,  the  clerk  of  the  superior  court  of  the  county  where 
the  testator  had  his  last  usual  residence  or  has  any 
property,  upon  a  duly  certified  copy  or  exemplification  of 
such  will  being  exhibited  to  him  for  probate,  shall  take 
every  order  and  proceeding  for  proving,  allowing  and 
recording  said  copy  as  by  law  might  be  taken  upon  the 
production  of  the  original. 

Sec.  2158.  Caveat.    C.  C.  P.,  s.  446. 

At  the  time  of  application  for  the  probate  of  any  will, 
or  at  any  time  thereafter,  as  prescribed  by  law,  any 
person  entitled  under  such  will  or  interested  in  the 
estate,  may  appear  in  person  or  by  attorney  before  the 
clerk  of  the  superior  court,  and  enter  a  caveat  to  the 
probate  of  such  will. 

Sec.  2169.  Transfer  to  superior  court,  when.     C.  €.   P., 
s.  447. 

Upon  any  caveator  giving  bond,  with  sufficient  surety 
to  be  approved  by  the  clerk,  in  the  sum  of  two  hundred 
dollars,  payable  to  the  propounder  of  the  will,  conditioned 
to  pay  all  costs  which  may  be  adjudged  against  such 
caveator  in  the  superior  court,  by  reason  of  his  failure  to 
prosecute  his  suit  with  effect,  the  clerk  shall  transfer  the 
cause  to  the  superior  court  for  trial ;  and  he  shall  also 
forthwith  issue  a  citation  to  all  devisees,  legatees  or  other 
parties  in  interest  within  the  state,  and  cause  publication 
to  be  made,  for  six  weeks,  in  some  newspaper  printed 
in  the  state,  for  non-residents  to  appear  at  the  term  of 
the  superior  court,  to  which  the  proceeding  is  transferred, 
and  to  make  themselves  proper  parties  to  the  said 
proceeding,  if  they  choose. 

King  V.  Kinsey,  71—407. 


826  WILLS  AND  TESTAMENTS.     [Chap.  54 

Sec.  2160.  Order  to  suspend  proceedings.     C.   C.  P.,  s. 
448. 

Where  a  caveat  is  entered  and  bond  given,  as  directed 
in  the  two  preceding  sections,  the  clerk  of  the  superior 
court  shall  forthwith  issue  an  order  to  any  personal 
representative,  having  the  estate  in  charge,  to  suspend 
all  further  proceedings  in  relation  to  the  estate,  except 
the  preservation  of  the  property  and  the  collection  of 
debts,  until  a  decision  of  the  issue  is  had. 

Syme  v.  Broughton,  86—153. 

Sec.  2161.  Costs,  how  paid.     1861,  c.  61. 

The  costs  in  all  cases  of  caveated  wills  and  testaments 
shall  be  paid  as  the  court  may  in  its  discretion  direct. 
Mayo  V .  Jones.  78 — 402. 

Sec.  3162.  Who  is  disqualified  to  serve  as  executor.    C.  C. 
P.,  s.  449. 

The  clerk  of  the  superior  court  shall  not  issue  letters 
testamentary  to  any  person  who,  at  the  time  of  apply- 
ing to  qualify,  is 

(1)  Under  the  age  of  twenty-one  years; 

(2)  A  person  convicted  of  an  infamous  crime; 

(3)  Who,  on  proof,  is  adjudged  by  the  clerk  incompe- 
tent to  execute  the  duties  of  such  trust,  by  reason  of 
drunkenness,  improvidence,  or  want  of  understanding; 

(4)  Who  fails  to  take  the  oath  or  to  give  bond  in  cases 
where  executors  are  required  by  law  to  give  bond; 

(5)  Who  has  renounced  his  executorship. 

Sec.  2163.  Executor  may  renounce.     C.  C.  P.,  s.  450. 

Any  person  appointed  an  executor  may  renounce  the 
office  by  a  writing  signed  by  him,  and  on  the  same  being 
acknowledged  or  proved  to  the  satisfaction  of  the  clerk 
of  the  superior  court,  it  shall  be  filed. 

Sec.  2164.  When  executor  deemed    to  have  renounced. 
C.  C.  P.,  s.  451. 

If  any  person  appointed  an  executor  does  not  qualify 
or  renoimce  within  sixty  days  after  the  will  is  admitted 
to  probate,  the  clerk  of  the  superior  court,  on  the  appli- 
cation of  any  other  executor  named  in  the  same  will,  or 
any  party  interested,  shall  issue  a  citation  to  such  person 
to  show  cause  why  he  should  not  be  deemed  to  have 
renounced.  If,  upon  service  of  the  citation,  he  does  not 
qualify  or  renounce  within  such  time,  not  exceeding 
thirty  days,  as  is  allowed  in  the  citation,  an  order  must 


Chap.  54.]     WILLS  AND  TESTAMENTS.  827 

be  entered  by  the  clerk  decreeing  that  such  person  has 
renounced  his  appointment  as  executor. 

Sec,  3165.  Executor  under  disqualification  of  age  or  ab- 
sence.   C.  C.  P.,  s.  452. 

Where  an  executor  named  in  the  will  is  under  the  dis- 
qualification of  non-age,  or  is  temporarily  absent  from 
the  state,  such  executor  is  entitled  to  six  months,  after 
coming  of  age  or  after  his  return  to  the  state,  in  which 
to  make  application  to  quahfy  and  take  letters  testa- 
mentary. 

Sec.  2166.  Letters  of  administration  with  the  will  an- 
nexed to  be  granted,  when  and  to  whom.  C.  C.  P.,  s. 
453.  i 

If  there  is  no  executor  appointed  in  the  will,  or  if,  at 
any  time,  by  reason  of  death,  incompetency  adjudged  by 
the  clerk  of  the  superior  court,  renunciation,  actual  or 
decreed,  or  removal  by  order  of  the  court,  or  on  any 
other  account  there  is  no  executor  qualified  to  act,  the 
clerk  of  the  superior  court  may  issue  letters  of  adminis- 
tration, with  the  will  annexed,  to  some  suitable  person 
or  persons,  in  the  order  prescribed  in  the  chapter  entitled 
"Executors  and  Administrators." 

Sec.  3167.  Qualifications,  &c.,  of  such  administrators.  C. 
C.  P.,  s.  454. 

Administrators  (in  cases  prescribed  in  the  preceding 
Sf  ction)  shall  have  the  same  quahfications  and  give  the 
same  bond  as  other  administrators. 

Sec.  3168.  Will  of  testator  to  be  observed.  C.  C.  P.,  s. 
455. 

In  all  cases,  where  letters  of  administration  with  the 
will  annexed,  are  granted,  the  will  of  the  testator  must 
be  observed  and  performed  by  the  administrator  with 
the  will  annexed,  both  in  respect  to  real  and  personal 
property,  and  an  administrator  with  the  will  annexed 
has  all  the  rights  and  powers,  and  is  subject  to  the  same 
duties  as  if  he  had  been  named  executor  in  the  wiU. 

Sec.  2169.  Oaths,  &c.    C.  C.  P.,  s.  467. 

Before  letters  testamentary,  letters  of  administration 
with  the  vviU  annexed,  letters  of  administration  or  letters 
of  collection,  are  issued  to  any  person,  he  must  take  and 
subscribe  an  oath  or  affirmation,  before  the  clerk  of  the 
superior  court,  that  he  will  faithfully  and  honestly  dis- 


828  WILLS  AND  TESTAMENTS.     [Chap.  54. 

charge  the  duties  of  his  trust,  which  oath  must  be  filed 
in  the  office  of  the  clerk. 

Sec.  2170.  Revocation  of  letters  on  proof  of  will,  &c.    C. 
C.  P.,  s.  469. 

If,  after  letters  of  administration  are  issued,  a  will  is 
subsequently  proved  and  letters  testamentary  are  issued 
thereon;  or,  if  after  letters  testamentary  are  issued,  a 
revocation  of  the  will,  or  a  subsequent  testamentary 
paper  revoking  the  appointment  of  executors,  is  proved 
and  letters  aie  issued  thereon,  the  clerk  of  the  superior 
court  must  thereupon  revoke  the  letters  first  issued,  by 
an  order  in  writine;  to  be  served  on  the  person  to  whom 
such  first  letters  were  issued;  and,  until  service  thereof, 
the  acts  of  such  person,  done  in  good  faith,  are  valid. 

Sec.  2171.  Kevocatlon  on  ground  of  disqualification  or 
default.    C.  C.  P.,  s.  470. 

If,  after  any  letters  have  been  issued,  it  appears  to  the 
clerk,  or  if  complaint  is  made  to  him  on  affidavit,  that 
any  person  to  whom  they  were  issued,  is  legally  incom- 
petent to  have  such  letters,  or  that  such  person  has  been 
guilty  of  default  or  misconduct  in  the  due  execution  of 
his  office,  or  that  the  issue  of  such  letters  was  obtained 
by  false  representations  made  by  such  person,  the  clerk 
shall  issue  an  order  requiring  such  person  to  show  cause 
why  the  letters  should  not  be  revoked.  On  the  return  of 
such  order,  duly  executed,  if  the  objections  are  found 
vahd,  the  letters  issued  to  such  person  must  be  revoked 
and  superseded,  and  his  authority  shall  thereupon  cease. 

Taylor  v.  Biddle,  71—1;  Murrill  v,  Sanderlin,  86—54. 

Sec.  2172.  Letters,  liow  issued  and  tested.  C.  C.  P.,  s.  471. 

All  letters  must  be  issued  in  the  name  of  the  state,  and 
tested   in   the  name  of  the  clerk  of  the   superior  coui't, 
signed  by  him,  and  sealed  with  his  seal  of  office. 
Tay)or  v.  Biddle,  71—1. 

Sec.  2173.  Wills  filed  in  clerk's  office.    K.C.,  o.  1 11),  s.  19. 
1777,  c.  115,  s.  59. 

AU  original  wills  shall  remain  in  the  clerk's  office, 
among  the  records  of  the  court,  where  the  same  shall  be 
proved,  and  to  the  said  wills  any  person  may  have  access, 
as  to  the  other  records. 

Taylor  v.  Biddle,  71—1. 


Chap.  54.]     WILLS  AND  TESTAMENTS.  829 

Sec.  2174.  No  will  effectual  without  probate;  certified 
copy  where  recorded;  probate  conclusive,  when.  R.  C, 
c.  119,  s.  20.     1784,  c.  225,  s.  6. 

No  will  shall  be  effectual  to  pass  real  or  personal  estate, 
unless  it  shall  have  been  duly  proved  and  allowed  in  the 
probate  court  of  the  proper  county,  and  a  duly  certified 
copy  thereof  shall  be  recorded  in  the  office  of  the  superior 
court  clerk  of  the  county  wherein  the  land  is  situate,  and 
the  probate  of  a  will  devising  real  estate  shall  be  conclu 
sive  as  to  the  execution  thereof,  against  the  heirs  and  de- 
visees of  the  testator,  whenever  the  probate  thereof,  under 
the  like  circumstances,  would  be  conclusive  against  the 
next  of  kin  and  legatees  of  the  testator, 

Sumner  v.  Roberts,  2  I»ev.,  527;  Moffit  v.  Witherspoon,  10  Ired..  185; 
Marshall  v.  Fisher,  1  Jon.,  Ill;  Floyd  v.  Flemming,  64—409. 

Sec.  2175.  Copies  of,  evidence.  R.  C,  c.  119,  s.  21.  1784, 
c.  225,  s.  6. 

Copies  of  wills,  duly  certified  by  the  proper  officer,  may 
be  given  in  evidence  in  any  proceeding  wherein  the  con- 
tents of  the  will  may  be  competent  evidence. 

Sec.  2176.  Written  wills,  how  revoked.  R.  C,  c.  119,  s. 
22.  1784,c.  204,s.  14.  1819,  c.  1004,  ss.  1,  2.  1840, 
c.  62. 

No  will  or  testament  in  writing,  or  any  clause  thereof, 
shall  be  revocable,  otherv^se  than  by  some  other  will  or 
codicil  in  writing,  or  other  writing  declaring  the  same,  or 
by  burning,  canceling,  tearing,  or  obliterating  the  same, 
by  the  testator  himself,  or  in  his  presence  and  by  his  di- 
rection and  consent:  but  all  wiUs  or  testaments  shall  re- 
main and  continue  in  force,  until  the  same  be  burnt, 
canceled,  torn,  or  obliterated  by  the  testator,  or  in  his 
presence  and  by  his  consent  and  direction;  or  unless  the 
same  be  altered  or  revoked  by  some  other  will  or  codicil 
in  writing,  or  other  writing  of  the  testator,  signed  by 
hira,  or  some  other  person  in  his  presence  and  by  his  di- 
rection, and  subscribed  in  his  presence  by  two  witnesses 
at  least;  or  unless  the  same  be  altered  or  revoked  by  some 
other  will  or  codicil  in  writing,  or  other  writing  of  the 
testator,  all  of  which  shall  be  in  the  handwriting  of  the 
testator,  and  his  name  subscribed  thereto  or  inserted 
therein,  and  lodged  by  him  with  some  person  for  safe- 
keeping, or  left  by  liim  in  some  secure  place,  or  among 
his  valuable  papers  and  effects,  every  part  of  vihich  will 
or  codicil  or  other  writing  shall  be  proved  to  l>e  in  the 
handwriting  of  the  testator,  by  three  witnesses  at  least. 


830  WILLS  AKD  TESTAMENTS.      [Chap.  54. 

Bethell  V.  Moore.  2  D.  &  B.,  311;  Bennett  v.  Sherrod.  3  Ired.,  303-  Hise 
v^Fmcher,  10  Ired..  130;  White  v.  Custen,  1  Jon.,  197;  /„  re  Zollicoffers 
Will,  J  Jon.,  310;  Sawyer  v.  Sawyer,  7  Jon..  134. 

Sec.  2177.  Revoked   by   marriage,    R.  C..  c.  119  s   '>-i 
1844,  c.  88,  s.  lO.  ...  -o. 

Every  will  made  by  a  man  or  woman,  shall  be  revoked 
by  his  or  her  marriage,  except  a  will  made  in  exercise  of 
a  power  of  appointment,  when  the  real  or  personal  es- 
tate, thereby  appointed,  would  not  in  default  of  such  an- 
pointment  pass  to  his  or  her  heirs,  executor  or  adminis- 
trator or  the  person  entitled  as  his  or  her  next  of  kin 
under  the  statute  of  distributions. 

Winslow  V.  Copeland,  Busb.,  17;  Sawyer  v.  Sawyer,  7  Jon.,  134. 

Sec.  2178.  Not  by  altered  circumstances.    R.   C      c    11«> 
s.  24.     1844,  c.  88.  '  ' 

No  will  shall  be  revoked  by  any  presumption  of  an  in- 
tention, on  the  gi-ound  of  an  alteration  in  circumstances. 

Sec.  2179.  Nor  by  conveyances  after  will  executed.    R  C 
c.  119,  s.  25.     1844,  c.  88,  s.  2. 

No  conveyance  or  other  act  made  or  done  subsequently 
to  the  execution  of  a  will  of,  or  relating  to  any  real  or 
persona  estate  therein  comprised,  except  an  act  by  which 
such  will  shall  be  duly  revoked,  shaU  prevent  the  opera- 
tion of  the  will  with  respect  to  any  estate  or  interest  in 
such  real  or  personal  estate  as  the  testator  shall  have 
power  to  dispose  of,  by  will,  at  the  time  of  his  death 

Sawyer  v.  Sawyer,  7  Jon.,  134;  Wood  v.  Cherry,  73—110. 

Sec.  2180.  Devises  construed  in  fee  unless  contrary  in- 
tension appear.    R.  C,   c.    1 19,  s.   26.     1 784,  c.  204, 

When  real  estate  shall  be  devised  to  any  person  the 
same  shall  be  held  and  construed  to  be  a  devise  in  fee 
simple,  unless  such  devise  shall,  in  plain  and  express 
words,  show,  or  it  shall  be  plainly  intended  by  the  will 
or  some  part  thereof,  that  the  testator  intended  to  con- 
vey an  estate  of  less  dignity. 

Alexander  v.  Cunningham,  5  Ired.,  430;  Riley  v.  Buchanan,  2   Winst 
90-  Gibson  V.  Gibson,  4  Jon.,  425;    Williamson  v.  Williamson.  4  Jon   Eq" 
281;  Swann  v.  Myers,  79 — 101.  ' 

Sec.  2181.  Copies  of  wills  in  the  office  of  secretary  of 
state  to  be  evidence.    R.  C,  c.  44,  s.  12.     1852  c   172 
18.56-'7,  c.  22.  o    *,v,.  j.<^. 

Copies  of  wills  filed  or  recorded  in  the  office  of  the  sec- 


Chap.  54.]     WILLS  AND  TESTAMENTS.  831 

retary  of  state,  attested  by  the  secretary,  may  be  given 
in  evidence  in  any  court,  and  shall  be  taken  as  sufficient 
proof  of  the  devise  of  real  estate,  and  are  declared  good 
and  effectual  to  pass  the  estate  therein  devised:  Provided, 
that  no  such  will  may  be  given  in  evidence  in  any  court 
nor  taken  as  sufficient  proof  of  the  devise  unless  a  certifi- 
cate of  probate  appear  thereon. 
Stevens  v.  French,  3  Jon..  359. 

Sec.  2182.  Registry  of  wills  recorded  in  wrong  counties, 
evidence.     1858-'9,  c.  18. 

Whereas,  By  reason  of  the  uncertainty  of  the  boun- 
dary lines  of  many  of  the  counties  of  the  state,  wills 
have  been  proved,  recorded  and  registered  in  the  wrong 
county,  whereby  titles  are  insecure;  for  remedy  whereof: 

The  registry  or  duly  certified  copy  of  the  record  of  any 
will,  dulv  recorded,  may  be  given  in  evidence  in  any  of 
the  courts  of  this  state. 

Sec.  2183.  Copy  of  lost  or  destroyed  wills  evidence,  when. 
1866-'7,  c.  127. 

When  any  will  which  may  have  been  proved  and 
ordered  to  be  recorded,  shall  have  been  destroyed  during 
the  late  war,  before  it  was  recorded,  a  copy  of  such  will, 
so  entitled  to  be  admitted  to  record,  though  not  certified 
by  any  officer,  shall,  when  the  court  shall  be  satisfied 
with  the  genuineness  thereof,  be  ordered  to  be  recorded, 
and  shall  be  received  in  evidence  whenever  the  original 
or  duly  certified  exemplification  would  be;  and  such 
copies  may  be  proved  and  admitted  to  record  under  the 
same  rules,  regulations  and  restrictions  as  are  prescribed 
in  the  chapter  entitled  "Burnt  and  Lost  Records." 


INDEX  TO  VOLUME  I. 


Abandonment  Section 

of  wife  and  children 9"0.    971 

Abatement 

of  actions ^™ 

improper  venue  in  criminal  proceedings  rem- 
edied by  plea  in '194 

Abduction 

of  children 973,    974 

Abortion 975,    976 

Acceptor, 

liability  of *^ 

Accessories, 

before  and  after  the  tact 977-980 

Account- 
administrators,  executors,  &c.  See  Executors. 
clerk  of  superior  court  keeps  record  of.. .  .(4)    113 
court  may  order,  in  actions  against  fiducia- 
ries      ^^^ 

current,  when  cause  of  action  accrues  on  —     160 
failure  of  railroad  officers  to,  with  succes- 
sor   2001 

guardian  exhibits  annual,  to  clerk 1580,  1617 

See  Guardian. 

reference  to  take 4S1. 

Acknowledgment 
by  partner  or  maker  of  note  or  bond,  evi- 
dence of,  to  repel  statute   171 

of  new  contract  or  promise,  to  repel  bar  of 

statute  of  limitations,  to  be  in  writing. . .     173 
Actions 

after  entry,  within  one  year 145 

against  foreign  corporations 194 

annulling  corporations 604 

assignee,  by 177 

by  party  in  interest 177 

civil 130,    133 

continued,  when  and  by  whom 401,    403 

controversy  how  determined  without 567 


liual. 


129 


first  disposed  of 403 

definition  of 126 

dismissed  by  court,  when (4)  424 

distinction  between,  at  law  and  equity  abol- 
ished   133 


Actions— Continued  Section 

division  of 12^ 

executor,  administrator,  for  or  against,  sur- 
vive, when 1490,  1497 

do  not  survive,  when 1491 

for  forfeiture  of  property  to  state 631 

for  injuries  to  property  before  justice  of  the 

peace ^^ 

letters  being  revoked,  may  be  continued 
against  executor,  &c.,  to  charge  him  per- 
sonally or  against  his  successor 1514 

limitations,  statute  of,  must  be  set  up  in  an- 
swer   ■      138 

man-ied  woman,  by  and  against 178 

merger  of 131 

one,  brought,  when  several  claim  ofBce,  &c.    614 

parties,  how  designated 134,  184,    185 

penal,  how  discharged 933,    934 

real  property,  brought  within  twelve  months 

after  non-suit,  &c 1*2 

removal  of,  from  one  county  to  another.  ..195-198 

summons  commences 161,  199,    830 

survive  death,  when.   1490.  1491, 1497,  1498 

trespass  upon  realty,  defendant   may  dis- 
claim title,  and  plead  tender  in  bar  577 
tried  in  county  where  cause  arose,  iS:c .        . .     191 

where  subject  matter  situate 190 

where  plaintiff  or  defendant  resides 192 

where  bond  of  executor,  &c.,  given,  &c. . . .     193 
trying  title  to  any  oCBce,  triable  at  return 

term ^16 

usurpation  of  office,  complaint  and  arrest  of 

defendant  in ... ,  '*9 

vacating  charter,  by  whom  brought.-         004-608 
waste,  for  and  agamst  whom . .  62.i 

when  not  to  abate ■  1°* 

when  the  estate  of  the  deceased  person  is  the 
real  party  in  interest,  must  be  brought 
by  or  agamst  personal  representative  as 

such 

all  executors  considered  one  person,  and 
judgment  may  be  entered  against  all, 

although  only  one  appears 1S<* 

civil,  exempt  from  arrest  while 
attending  court '367 


1507 


834: 


INDEX  TO  VOLUME  I. 


Adequate  support,  Section 

failure  of  husltand  to  provide     973 

Administration, 
time  not  counted  during   controversy  about 

letters,  (S:c 1G8 

See  Kzecittors. 
Administrators. 
See  Kx€cutor». 
Adoption, 

bond  to  be  given  by  whom,  and  whon 4 

effect  of  order  of 3 

letters  of,  superior  court  grants 2 

order  granting,  recorded 5 

parties  to  proceeding 6 

petition  for,  where  filed 1 

revocation  of 0 

Adulterated  liquors, 

making  or  selling 983-9&i 

Adultery, 

cause  of  divorce 1285 

consequence  of  husband   separating  from 

wife  and  living  in 1845 

on  right  of  wife  to  dower  and  years'  pro- 
vision   2102,  2110 

fornication  and 1041 

Advancements, 

accounted  for 1483 

refusing  to  accotmt,  effect 1485 

schedule  rendered 1484 

Advances, 

lien  on  crups  in  favor  of  those  making.  .1799,  1800 
Advertisements^ 

defacing,  &c 981 

Affidavit, 

answer  verified,  effect  of 344 

administration,  for  letters  of 1381 

upon  presenting  claim  to  administrator,  &c  1425 

arrest  393 

arrest  and  order,  how  served 290,    297 

arrest  vacated  on,  and  opposed  by,  when 317 

attachment,  where  filed 3.")5 

bastardy,  to  obtain  warrant  in 81 

certified,  how 031 

claim  and  delivery  of  personal  property 332 

continuance  of  action 401,    ■103 

divorce  and  alimony,  filed  with  complaint 

for,  provisos .  1287 

injunction,  issued  upon  and  served  with 3.39 

motion  to  vacate,  may  be  opposed  by 345 

referee  appointed  to  take,  of  person  refusing 

to  testify (5)    594 

removal  of  cause  to  anothercoimty 196,    197 

supplementary  proceedings,  in 488,    490 

to  obtain  order  to  call  on  persons  having 
property  of  judgment  debtor,  or  owing 

him,  to  answer 490 

to  issue  process  to  officer  out  of  coimty 929 

Agreenient, 

in  lease  to  repair,  how  construed.  1758 

between    executor    and    creditor    to  refer 

claim 1426 

Alias 
summons,  when  issued 205 


Aliens,  Section 

actions  by,  lime  of  war  not  counted 165 

contracts  of,  validated 8 

bold  and  convey  lands 7 

Alimony, 

affidavit  filed  with  complaint,  provisos.   1287 

divorce  from  bed  and  board,  what,  granted 

in 1290 

pendente  lite jo^j 

power  of  court  to  issue  writ  of  possession, 

when  real  estate  assigned  as 1398 

security  for  costs  on  application  for 1294 

superior  court  grants 13&J 

feme  lunatic  entitled  to 1680 

wife  not  suing  for  divorce,  entitled  to,  when.  1293 

Allowances 

to  attorneys,  by  court,  when 1948 

to   parties    in    partition  proceedings,  how 

paid 1903 

Amendment 

of  process,  does  not  discharge  bail 320 

when  and  how  allowed 201,  2?J-274 

Annual  statement, 
pubUcation  by  clerk  of  county  commission- 
ers, neglect,  &c 713,    714 

Answer 338,    246 

contents . .    aj3 

defences  and  coimterclaims  by 345 

demurrer,  answer  in  lieu  of,  when 341 

overruled,  allowed,  when 279 

filed,  when 307 

filed  by  parties  notified  to  show  why  they 

should  not  be  bound  by  judgment 234 

frivolous,  judgment  on 388 

limitation  set  up  in ]38 

motion  for  judgment  on,  by  defendant 249 

new  matter  in,  deemed  denied 268 

not  filed  in  action  to  recover  realty,  until 

bond  given 237 

objection  not  taken  by,  waived ;  exception. . .    iM3 
real  estate,  when  title  to,  is  in  controversy. . .    836 

sham  and  irrelevant,  stricken  out 347 

slander  and  libel 306 

Appeals* 

FROM  JUSTICE  OF  THE  PEACE. 

accused  may  take,  in  criminal  proceedings.  900 

justice  transmits  papers  to  appellate  court  901 
copy  of  complaint  to  be  given  either  party 

on  payment  of  fees 903 

bastardy 33 

court  compels  plaintiff  to  secure  costs  on  ...  604 

costs  in 542 

heard  on  original  papers 881 

execution  how  stayed  on 883 

effect  of 875 

when  and  how  to  be  taken 876 

written  notice  of,  not  given,  when 877 

return  of,  to  be  made 878 

defective,  amended 8T9 

docketed  by  clerk 880 

undertaking  on 888,  884 

restitution  of  property,  when  ordered .        ...  886 


INDEX  TO  VOLUME  I. 


835 


Appeals— Continued.  Section 

landlord  and  tenant,  increase  of  undertaking 

upon '^'' 

plaintiff  appealing,  and  not  recovering  great- 
er sum,  does  notrecover  costs 506 

FROM  INFERIOR  COURT 

to  superior  court °^ 

FROM  CLERK  OF  THE  SUPERIOR  COURT 

in  matters  of  law US,    2S2 

no  undertaking H'''    252 

how  taken,  and  when 116.    '^^ 

duty  of  clerk  on,  prayed 83^ 

when  judge  decides 255 

In  proceedings  touching  executors  and  ad- 
ministrators    1464,    1465 


in  processioning '"'^ 

from  county  commissioners 8039,  2056,  2063 

FROM  SUPERIOR  COURT 
case  how  stated  and  settled;  notice,  penalty 

on  judge 550 

controversy  without  action 

costs  on,  generally 

entryof 55U 

execution  not  suspended,  imless  bond  given    519 

from  decision  of  judge 256,    418 

in/orvia  pauperis 553 

intermediate  orders  affecting  judgment  re- 
viewed by  appellate  court  562 

judgment  by  appellate  court  against  party 
cast  and  his  sureties,  amount  ascertained 

in  case  of  default 565 

judgment  for  money,  security  to  stay  execu- 
tion, new  undertaking  on  sureties  first 
becoming  insolvent ;  perishable  property    554 

judgment  how  secured 435 

judgment  of  appellate  court  on 563 

judgment  roll,  copy  of,  sent  to  supreme  court.    551 
judgment  to  deUver  document  or  personal 
property,  it  must  be  deposited  or  security 

given 555 

judgment  to  execute  conveyance,  it  must  be 

executed  and  deposited 556 

justice  of  the  peace,  from,  tried  at  first  term 

of  superior  court 565 

rtcordari,  costs  secured  on 661 

security  given  or  deposit  made,  unless  waived    552 
security  required,  on  judgment  to  deliver  real 
property,  or  for  sale  of  mortgaged  prem- 
ises       557 

proceedings  stayed  upon  security  given —    558 
substitutes  for,  certiorari,  recordari  and  sii- 

persedeafi,  as 545 

supreme  court,  appeals  taken  to 945 

sureties  justify  or  undertaking  of  no  effect. .    560 

taken  by  whom,  and  in  what  cases 547-648 

undertaking  part  of  record  sent  up 663 

FROM  SUPREME  COURT, 
by  state  to  U.  S.  supreme  court,  costs  in 638 


Appeals— Continued.  Section 

IN  CRIMINAL  ACTIONS. 

in  criminal  actions 900-902, 1181,  1234-1337 

by  defendant  to  supreme  court 1S34 

by  state  in  what  cases 1237 

convicted  persons,  right  of,  without  security  1233 

court  allows  bail,  pending 1181 

judge  to  grant,  and  defendant  gives  security 

for  api)earance 1236 

from  mayor,  &c.,  to  superior  court 3819 

perfected  and  settled  as  in  civil  actions 12»4 

in  road  cases  from  board  of  supervisors  to 

county  commissioners 2023,  2056. 2063 

and  from  county  commissioners  to  superior 

court 2089.  2056,2063 

Appearance 
of  defendant,  equivalent  to  service  of  sum- 


in  person  or  by  attorney 109 

Apprentices 

bound  by  indenture * 

by  whom H 

duty  of  clerk  in  binding 14 

education  of 13 

masters  of,  what  to  provide 13 

misconduct  of 16 

refusing  to  serve,  may  be  compelled 15 

service,  teim  of    1^ 

white  child,  not  bound  to  negro 12 

who  may  be  apprenticed 1 1 

Arrest. 
defendant  arrested,  gives  undertaking; 

form 299 

how  discharged 298 

in  prison  for  lack  of  bail,  may  give;  bond 

returned  to  court ^18 

in  what  cases 290,291,293,609,850 

motion   to  vacate   order  or  to  reduce  bail 

before  judgment 316 

order  and  affidavit  with  copies  delivered  to 

sheriff,  how  served 296, 297 

order  of,  obtained  on  affidavit 293. 852 

from  whom  obtained 292, 851 

where  issued;  form;  time  to  answer;  no- 
tice to  vacate 295 

offenders,  arrest  of,  by  whom  made,  1134, 1125, 1129 

officers  break  open  doors,  when 1127, 1128 

peace  officers  may,  without  warrant  when. . .  1126 
persons  under,  on  criminal  warrant,  ivhere 

and  before  whom  taken 1138,  1141 

Sunday,  no  person  arrested  in  civil  actions 

on (5)    291 


undertaking  upon  order  of 294 

of  bail  delivered  to  clerk  and  notice  to 

plaintiff  and  sheriff 304 

vacated  on  affidavit,  opposed  by  affidavit. ...  317 
warrant,  criminal  arrested  without,  to  have 

immediate  hearing H^O 

witnesses  and  jurors  in  civil  actions,  exempt 

from,  while  attending  court 1367,  1735 

woman,  exempt  from,  in  civil  actions 291 


836 


INDEX  TO  VOLUME  I. 


Arson,  Section 

and  other  burnings 985 

Ai'tivles  of  agreement, 

forming  railroad  companies  and  other  cor- 
porations        007-882,  1 93a 

See  liailroad  Companies^  Corporatiowt. 
Artificial  islands, 

or  lumps,  penalty  for  erecting 986 

Assault, 

action  for,  limitation  punishment 150,  987 

followed  by  death  in  another  county  or  state, 
offender  indicted  in  county  where  assault 
was  made 1196,  1197 

with  intent  to  have  carnal   knowledge   of 

married  woman 1101 

to  commit  rape 1102 

Assets, 

account,  report,  &c.,  evidence  of,  when 1472 

crops  ungathered  at  decease,  personal 1407 

distinction  between  legal  and  equitable,  abol- 
ished   1406 

executor,  »S:c..  brings  action  to  recover,  or  to 
recover  possession  of  real  property  or  for 
injury  done  to  such  assets  or  real  prop- 
erty   1501 

new,  to  be  inventoried 1398 

proceeds  of  sale  of  realty  to  pay  debts,  per- 
sonal    1404 

real,  what 1405 

sufficient  to  pay  one  or  more  classes  of  Intes- 
tates' debts,  what  judgment  1467 

insufScient  to  pay  all  the  claims  in  any  class, 

what  judgment 1468 

trust  estate  in  personalty,  deemed  personal. .  1403 
Assignee, 

action  by 177 

costs  against,  after  action  brought S39 

Attachment, 

action  to  recover  notes,  &c.,  of  defendant, 
prosecuted  by  plaintiff,  bond  of  indem- 
nity given 371 

affidavit  to  procure,  sets  forth  what ^49 

defendant  appearing,  may  move  to  discharge 

atiarhment:  discharge  allowed;  effect  of;    373 
undertaking  given 374 

defendant   recovering   judgment,    bond    of 

plaintiff  and  bond  taken  by  sheriff  liable.    372 

execution  on  property  incapable  of  manual 

delivery 303 

garnishee  declaring  debt  due  or  property  de- 
liverable at  a  future  day,  what  done .368 

denying  he  has  property,  issue  to  be  made 


up 


360 


failing  to  appeir,  proceedings  against, 
judgment,  when  conditional,  when  ab- 
solute      306 

confessing  articles  In  his  possession,  ar- 
ticles valued,  and  judgment  tor  value 307 

judgment  against 364 

stating  articles  deposited  with  him,  how 
exonerated 367 

who  summoned  as,  and  how .364 

habeas  eorpua,  writ  of,  ofQcer  failing  to  obey.  1637 


Attachment— Continued.  Section 

judge  refusing  to  grant 163f 

issued,  when  318 

in  what  actions 34? 

judgment,  how  satisfied 3Tij 

judicial,  issued  when :)iri 

justices,  code  of  civil  procedure  applicable 


to. 


853 

issued  by,  when 350,  351 

levied  on  land;  its  effect,  what  done 354 

laborer  in  danger  of  losing  his  lien,  has  rem- 
edy by -     1795 

officers  of  corporations,  debtors  and  individ- 
uals furnish   certificate   of   defendant's 

interest,  or  of  the  property 309 

perishable  property,  when  sold 300 

person  replevying,  to  give   undertaking; 

property  replevied  before  sale 30! 

property  claimed  by  third  person,  he  may 

interplead 375 

sets  forth  what 349 

shares,  interests  and  profits,  of  corporations 

attached 362 

sheriff  returns  warrant,  with  his  proceedings 

thereon ;  copies  delivered  to  him  376 

summons,  how  served 348 

sureties,  exceptions  to,  and  justification  of.  378 

secm-ity ,  how  increased 377 

undertaking,   before  issuing  warrant,  how 

conditioned 366 

not  affected  because  of  irregularities 358 

vacated  when,  and  by  whom  — 877 

vessel,  when  sold 860 

warrant,  by  whom  issued  If  not  founded  on 

contract,  or  over  two  hundred  dollars 351 

how  served 350,  352 

how  executed 359 

procured,  affidavits  when  and  where  filed.  356 

to  whom  directed,  and  what  to  require 357 

when  issued  by  justice  of  the  peace 360,  388 

Attorney, 

addresses  court  and  jurj',  how  long 30 

argues  law  and  fact  to  jury 30 

allowances  to.  by  cr'urt,  when 1W8 

clerks  cannot  practice  as  28,  110 

complaint,  failure  to  file,  penalty 22 

county  commissioner  cannot  act  as.  In   his 

county 27 

debarred 26-27 

fraud  of,  penalty 28 

judgment  against,  retahilng  client's  money . .  S4 
justices  of  the  peace  cannot  act  as.  In  their 

county 27 

licensed  by  supreme  court 17 

oathof 19 

of   another  state,  not  to   practice  without 

license 18 

party  may  appear  bj' 109 

power  of,  when  attorney  required  to  file 29 

prayers  of,  for  instructions  to  be  in  writ- 
ing   416 

punished  as  for  contempt 664 

See  tounael. 


INDEX  TO  VOLUME  I. 


837 


Attorney  general.  Section 

action  to  annul  corporation,  when  and  how 

brought  by 605,  1969 

action  by,  to  vacate  charter 604 

upon  information 607 

brings  action  against  corporations  686 

certifies  amount  of  costs  in  appeals  by  state 

to  the  U.  S.  supreme  court 538 

private    relator  brings  action    on  leave  of, 

when 608 

railroad  companies,  institutes  action  against, 

for  forfeiture  of  charter,  when 608, 1969 

See  vol.  n. 
Attornment, 
conveyance  of  rents,  reversions  or  remain- 
ders, complete  without  1"64 

deeds  for  land  good,  without,  when 1445 

Anthentication  of  records, 

See  vol.  II,  Appendix. 
Bail, 

action  against,  limitation —  (Ij    155 

adjudged  sufflcient,  what  done 308 

costs  to  pay,  when 319 

defendant  in  prison,  may  give 318 

may  arrest 301 

may  surrender 300 

deposit  in  lieu  of 309,311 

when  paid  into  court  by  sheriff,  &« 310 

appUed  to  plaintiff's  judgment 31S 

exonerated,  how 303 

in  habeas  ct>rp?fcs,  when  party  allowed 1647 

justification  of ;  new  trial 305,  307 

liable  to  sheriff,  when 315 

not  discharged  by  amendment  of  process  —    820 
in  offences  not  capital,  taken  by  magistrate.  1139 

duty  of  magistrate  taking 1140 

not  allowed  or  not  given,  eiccused  taken  be- 
fore some  magistrate   of    the    county, 

whence  warrant  issued 1141 

proceeded  against  by  motion 302 

quaUfications  of 306 

sheriff  liable  as,  when 313 

liability,  how  enforced  314 

substituted  for  deposit  311 

undertaking  of,  delivered  to  clerk;  notice  to 

plaintiff  and  sheriff  304 

allowed  criminals,  when 1156, 1181 

bonds  of  persons  in  custody,  taken  by  sheriff, 

how  sued  on 1232 

court  allows,  pending  appeal  1181 

defence  good  for  principal,  good  for  bail.  . . .  1233 
may  arrest  and  surrender  principEil  before 
esecution ;   suiTendered  after    recogniz- 
ance forfeited,  bail  not  discharged 1330 

persons  surrendered  may  give  other 1231 

prisoner  let  to,  recognizance  filed  with  clerk.  1102 
sheriff  allowing  release  of  prisoner  without. 

amerced  and  indicted 1231 

may  take,  when 1180, 1232 

does  not  become 1180 

who  may.  persons  charged  with  crime  and 

imprisoned 1161 

not  imprisoned  1160 


Banks,  Section 

action  on  notes  of,  not  barred 174 

against  stockholders,  barred 175, 176 

Bastardy, 

alBdavit  to  obtain  warrant  in 31 

allowance  to  mother 35 

appealsin — 32,  33 

bonds  and  costs  in 32 

illegitimate  child  legitimated  by  father 39 

issue  of  paternity 32,  33,  35 

trial  of  postponed,  when 34 

justices  of  the  peace  have  exclusive  jurisdic- 
tion of 31 

legitimation,  effect  of 40 

maintenance,  execution  for 37 

mother,  refusing  to  declare  father,  fined; 

bond  required 33 

putative  father,  how  punished 35 

committed  to  house  of  correction  or  ap- 
prenticed     3,8 

statute  of  limitations  in 36 

warrant,  when  issued 31 

tor  putative  father 32 

Battery, 

action  for,  limitation (3)      156 

Betterments, 

claim  for  by  defendant 473-487 

Betting, 

at  cards 1042 

Bigamy, 

what  and  how  punished 988 

Bills,  bonds  and  notes, 

days  of  grace  on 43 

for  money,  negotiable  as  inland  bills  of  ex- 
change ;  indorsee  may  sue,  when  obligee 

may 41 

indorsers  of  negotiable  securities  liable  as 

sureties SO 

interest  on 44 

payable  on  demand -45 

on  securities  for  payment  or  delivery  of 

specific  articles 46 

obligations  taken  in  judicial  proceedings  for 
benefit  of  suitors,  payable  to  clerk  or  offi- 
cer, suable  in  name  of  state 51 

of  exchange,  damages  on  protested,  in  vari- 
ous places  ■  ■  -      48 

drawn  or  indorsed  in  state  and  protested. 

bear  interest  from  time  of  payment 47 

orders  in  writing;  drawer  or  acceptor  liable; 
protest  and  notice  before  action  against 

drawer    42 

protest,  evidence  of  demand 49 

Blackmailing 989 

Bond, 

administrator 1388 

action  on,  where  brought 193 

adopting  minor ■* 

bastardy 32 

collector ^3&4 

costs,  for;  required  by  clerk  before  issuing 

summons ^^ 

mortgage  in  lieu  thereof 117 


I 


83S 


INDEX  TO  VOLUME  I. 


Bond— L'outiaued.  Section 

uot  required  in  appeals  from  clerks. .     116,    252 
defendant  to  give,  in  action  to  recover  land 

117,    237 

executor ; 1515 

remedy  on 1516 

action  on,  where  brought 193 

must  give  new  sureties  on,  when 1518 

forthcoming,  of  personal  property,  who  to 

take 463 

surety  furnished  with  list 464 

how  proceeded  on 465 

guardian,  increased  on  sale  of  property 1574 

property  in  common,  one  bond 1576 

recorded  by  clerk,  action  on 1575 

renewed  every  three  years 1581 

mortgage  in  lieu  of 117-122 

obligation,  &c.,  in  which  ancestor  has  bound 

his  heirs,  how  put  in  suit 140J 

See  offlxial  Bonds,  Undertaking. 
Book-debt, 

how  proved 691-693 

copies,  evidence 593 

Books 
and  papers  of  ofSoe;  refusal  of  defendant  to 

dehver 612 

or  writings  to  be  produced  by  parties ;  effect 

of  failure 1373 

See  ExeciUioa. 
Boundaries,  &c., 

between  counties,  how  settled 781,    722 

Brands, 

f jauduleut  use  of 1040 

Breach  of  tlie  peace, 
person  committing,  in  presence  of  court,  re- 
quired to  give  security,  or  imprisoned. . .  1224 

persons  present  at,  may  ari'est 1 121 

persons  summoned,  assist 1125 

Bribery 990-992 

costs  in  pro.secutions  for,  when  paid  by  state,    742 
Bridges, 

breaking,  injuring 993 

causeways  and;  width  2026 

contracts  to  build,  when  binding  on  coun- 
ty    20:i4-2035 

draws  erected  in,  when  and  by  whom 

2017,  2051-2053,  3719 
expenses  for  maintaining  public,  borne  by 

county,  when 8060 

hollow,  made  by  order  of  supervisors 2029 

mills  and  ditches,  ownere  of;    on  and  across 

roads,  to  keep  up  bridges;  penalty... 20.36,  20.57 

over  canals,  drains,  &c 1086 

railroad  and  other  road  companies  to  keep, 

over  highways,  penalty 8054 

solicitor  prosecutes  for  injuries  to 8055 

toll,  allowed  when;  builders  to  keep  in  re- 
pair or  forfeit  toll  and  be  indicted    .8046.  804? 
bonds  of  owners,  taken  by  county  com- 
missioners ;  persons  injured,  may  recover 

damages 8048 

Burglary 995-997 

Burnings 985 


Burnt  and  lost  records.  Section 

action  on  official  bonds  destroyed 08 

certain  lost  deeds   and   other  writings  re- 
stored and  validated 70,  71 

color  of  title,  how  determined *1 

conveyances  lost,  how  establi-shed 64 

copies  of,  and  other  instruments,  bow  re- 
gistered        66 

copies,  records   and    registrations  of,  same 

force  as  originals 68 

court  records  and  transcripts,  admissible  to 
prove  contents  of  destroj'ed  deeds,  wills, 

depositions  and  other  papers 05 

evidence  of,  certified  copj-  by  proper  officer 

is 55 

judgments  destroyed,  how  perpetuated 60 

new  registration  of 56 

rules  for  filing  petitioui  and  motions  con- 
cerning       67 

title,  written  evidence  of,  executed  before 

destruction,  valid 69 

\\  ills  destroyed,  contents  of,  how  established      59 

lost  copies  of,  probated 57 

certificate  thereof  evidence 58 

witness  ticket  destroyed,  how  made  good ...      63 
Camp-fires, 

penalty  for  not  extinguishing 54 

Canals, 
assignees  bound  to  repair,  as  original  owners  1-309 
commissioners  assess  and  apportion  labor, 
report,  on  confirmation,  to  stand  as  judg- 
ment against  partieii I.'106 

fences  or  paths  across,  made  by  proprietor, 

when 1300 

injuries  to 1098 

interested  parties  contribute  towards  repair.  1310 
opening  drain  into,  of  another,  proceeding. .  1305 

proceeding  to  repair 1307 

proprietor  caimot  open  drain  within  thirty 

feet  of  canal 1304 

state's  interest  in,  how  controlled 1691 

width  of  land  condemned  for 1708 

Carteret, 
sheriff,  <S:c. ,  may  serve  pi-ocess  on  ship-board 

between  Ocracoke  and  Portsmouth 8078 

Cartways 8033,8056.8057 

Castration. 

with  and  without  malice 999.1000 

Cattle  and  live  stock, 

injuring,  mismarking.  &c 1001-1008,  1068 

Causes, 
removal  from  state  to  federal  court,  see  Vol. 
ff.  Appendix. 

from  one  county  to  another 195-198 

Causes  of  action, 

joinder  of  867 

misjoinder  of.  how  availed  of (5)  239,846 

CauHeways, 

width  of aoas 

Caveat, 
to  probate  of  will,  when  and  how  entered . . .  8158 
transfer  of  proceedings  to  superior  court, 

when 8159 


INDEX  TO  VOLUME  I. 


839 


Caveat— Continued.  Section 

order  to  suspend  proceedings,  when 2160 

costs,  how  paid 2161 

Certification, 
of  records  of  administration  or  of    letters 

testamentary,  in  other  states 1343 

Certiorari, 

prisoner  not  discharged  by,  when 937 

writ  of;  bond  for  costs 545 

Challenge, 

aceeptin){,  sending ,  &c 1012 

ciril  acti<ms,  four  allowed 406 

criminal  actions,  defendant  has  twenty-three 
challenges  in  capital  cases,  in  other  cases, 

four 1199 

state  has  four  in  capital  cases,  in  other 

cases,  two 120O 

in  court  of  justice  of  the  peace,  two 861 

Cliarter, 

action  to  vacate,  by  whom  and  when  brought    604 
Chattel  mortgage, 
form  of;    sale    under,    not    made    without 

twenty  days'  notice 1273 

fee  for  probate  tind  registration 1274 

Child. 

abandonment  of .  ■^'•0.  972 

abduction  of 973,  974 

adoption  of  minor 1-6 

advanced,  to  account 1483 

to  file  schedule 1484 

refusing  to  account,  not  entitled  to  any 

more 1485 

after-born,  decree  for  contribution 1539 

deemed  devisee  or  legatee,  when 1540 

share  of  land,  how  allotted 1S36,  1538 

of  personalty,  how 1537 

bom  after  date  of  parent's  will,  not  preju- 
diced thereby 2145 

concealing  birth  of 10O4 

consequences  of  divorce  upon  custody  of  1296,  1570 
contest  between  parents  for  custody  of,  court 

or  judge  may  award  to  either 1661, 1662 

father  has  custody  of,  when  guardian  ap- 
pointed    1572 

illegitimate,  legitimated 39,  40 

inherits  from  mother,  &c (9),  (10)  1281 

judgment  of  divorce  does  not  illegitimate —  1295 
jurors,  names  of,  drawn  by,  not  more  than 

te.i  years  old 1727 

parents  mherit  from,  when C6),(10)  1281 

white,  not  bound  to  negro  master —      1'3 

Chiirclies, 

injuries,  c&c,  to 1062 

Cisterns, 

springs,  &c.,  wilfully  injuring 1114 

Claim  ai»*l  Delivery, 

action,  limitation  (4)    155 

affidavit,  what  to  contain 322 

claimant  filing  tmdertaktag,  propeity  deliv- 
ered to  him 332 

defendant  may  except  to  plaintiff's  under- 
taking, when,  effect 325 

delivery  of  property  claimed,  when 321 


Claim  and  Delivery— Continued  Section 

flat  of  clerk  to  sheriff 323 

justice  of  the  peace,  before 889,  891 

See  Justice  of  the  Peace. 
justification  of  defendant's  sureties,  &c. .  .327,  SJ8 
property  claimed  by  third  party,  what  done.    331 

in  building  or  on  person,  how  taken 329 

taken  by  sheriff,  how  kept .330 

sheriff  responsible  tUl  defendant's  sm-eties 

justify 327 

undertaking  and  affidavit  served  on  defend- 
ant, how 324 

returned  by  sheriff 333 

of  defendant  to  return  property,  requisites 


of  , 


326 


of  plamtiBE  for  deUvery  of  property 334 

Claims, 
against  county  numbered  and  copies  yearly 

furnished  chairman  of  board 751 

estate  of  deceased 1421-1428 

See  Execxdom  and  Administrators,  claims. 

state,  prosecuted  in  supreme  court 947,  948 

Clergyman, 

mariying  negro  to  white,  &c 1085 

penalty  for  celebrating  marriage,  without  li- 
cense   1813, 1S17 

Clerks, 
admitting  money  in  hand  and  failing  to  pay, 

how  sued 1867 

books  of  fines  kept  by  all 72.i 

executions  issued  by ,  within  six  weeks,  penalty  470 
of  courts  of  record  in  other  states  are  com- 
missioners of  affidavits 640 

going  out  of  ofllce  to  deliver  records,  i-c. ,  to 

successor 1^ 

statement  of  moneys  in  hand  three  years, 
&c.,  to  whom  made;  moneys  to  be  paid 
to  certain  public  officers;  penalty  for 
failure  to  render  account 1 S64-1866 

SUPERIOE  COURT, 

appeal  from,  on  matters  of  law 256 

appearance  before,  may  be  in  person  or  by 

attorney 1'59 

apprentices  bound  by 11 

duty  in  regard  to •.■  14 

attorney  at  law,  cannot  act  as 28, 110 

bond  of ■  ■  •  ■  '''2 

approval  of 7^1 

annually  renewed  or  office  forfeited 77 

failure  to  give,  office  vacant 70 

mortgage  in  lieu  of l'-i2 

additional  security,  when 119 

acting  mthout  giving,  misdemeanor. ...  79 
books,  .Src.,  furnished  to,  by  county  commis- 
sioners  H2. 84 

to  be  kept  by 83 

failure,  misdemeanor 88 

commission  for  taking  probate  in  anollier 

state.  Issued  by l'^58 

commissioners  of  affidavits. 631 

corruption,  malpractice,  &c.,  removal  of,  tor  183 
costs  in  crimiual  actions  itemized   by,  and 


I" 

I 


840 


INDEX  TO  VOLUME  I. 


Clerks — Continued.  Section 

open  to  inspection 93 

statement  of,  to  be  made  by  clerk  in  thirty 

days 94 

deputies  appointed  by T5 

disqualifleations,  &c 104 

waiver  of 105 

proceedings,  removal,  &c 106 

dnties,  neglect  of 101 

estates  administered  on,  by,  before  election, 

accounts  how  settled 107 

execution  after  three  years,  how  issued  by 

43T,  440 
executors,  &c.,  render  annual  accounts,  &c., 

to  1399 

failure  after  citation;  attached  for  con- 
tempt and  removed 1400 

new  bonds  or  sureties  required  of,  when. . .  1518 

falsely  swearing  to  report 92 

flat  in  claim  and  delivery,  issued  by 333 

fines,  with  itemized  statement,  paid  to  and 

filed  with  county  treasurer  by 95-98 

fraudulent  disposition  by,  or  other  custodi- 
ans of  the  public  laws,  reports  or  other 

pubUc  documents,  a  misdemeanor 1073 

guardians  abusing  their  trust,  when  remov- 
ed by 1583 

annual  accounts,  to  audit  1617 

not  rendered,  to  order  an  account,  attach- 
ment to  issue,  and  removal  from  office. .  1618 

letters  of,  issued  by 1621 

list  of,  to  be  furnished  grand  jury  by 1609 

infamous  crime,  forfeits  office 123 

inferior  court  clerk,  when 812 

issues  of  fact,  or  of  law  and  fact  transferred 

toterm - 116,    256 

issue   letters  of   incorporation;  notice   of, 

published,  contents,  &c 679 

judgments  docketed 435 

entry,  what  to  contain. 433 

for  money  rendered  by,  to  be  docketed, 

lien  of 83 

from  supreme  court 436 

judgment  roll  made  up,  what  to  contain ...    434 

jurisdiction 103 

over  the  appointment  of  guardians,  &c., 

and  estates  of  minors 1566-1569 

in  proceedings  by  creditors  against  execu- 
tors, &c.,  to  account et  seq.  1.(48 

in  proceedings  to  condemn  land  for  rail- 
road purposes ftsf.g.  1944 

over  probate  of  wills,  appointment  of  ad- 
ministrators, &c 1374 

first  acquiring,  has  exclusive  jurisdiction..  1375 
justices  of  the  peace,  process  of.  Issuing  out 

of  county,  certified  by 873 

appeals  from,  docketed  by S.* 

vacancies  in  olllce  of  justice  of  the  peace, 
and  names  of  oppointees,  certified  to  sec- 
retary of  str.te,  by 89 

liable  on  bond  tor  money  paid  into  his  office 
by  executors,  &c.,  under  order  of  court, 

&c 1626,  i.vrr 


Clerks -Continued.  Secwoh 
for  certain  losses  and  defaults  of  guar- 
dians   1614,  1615 

minutes  of  court  read  each  morning,  by Vii 

moneys  received  by,  reported  annually  to 

county  commissioners 06 

paid  into  office  before  execution,  to   be 

paid  over  to  parties 438 

mortgage  may  be  deposited  with,  in  lieu  of 

bondforcosts 117,    120 

additional  security  required  if  property  is 

reduced  in  value 119 

affidavit  of  value,  required 121 

may  be  given  by  any  one,  how  execnted 

and  foreclosed 120 

official  bonds  may  bo  substituted  by 118 

oath  of ,  ffied  with  register  of  deeds 74 

office,  going  out  of,  and  failing  in  duties 87 

hours  for  probate  business 114 

failure 115 

vacancy  in,  how  filled TS 

where  kept,  and  when  open 80,    114 

papers  in  each  action,  kept  separate   and 

filed 86,    111 

deUvered  to  successor -.     Ill 

payments  entered  on  judgment  docket,  and 
certificate  sent  to  coimties  where  judg- 
ment docketed 438 

powers  of,  enumerated 108 

precepts,  process,  executions,  Ac.  date  of 

issue  noted  on,  by,  neglect,  &c 100 

probate  judge,  office  abolished .102,    114 

quahflcations  of 74 

receive  money  remaining  in  hands  of  execut-" 
ors,  &c.,  twelve  months  after  qualifica- 
tion   1543 

receipt  for  same 1544 

record   appointment   of   commissioners  of 

affidavits 684 

articles  of  agreement,  collect  $25,  failure. .    678 

fee 680 

records  kept  by 78,82,    112 

list  of ,  and  by  whom  examined 88 

delivered  to  successor,  failure 81,    124 

removal  of  proceetlings  when  clerk  disquali- 
fied, by  judge  when,  and  before  whom . .    106 
report  of  public  funds  made  annually,  when 
approved  by  commissioners,  to  be  regis- 
tered  BO,     0] 

failure,  bow  punished 92 

resignation  of 7H 

returns  on  execution,  copies  sent  to  clerks  of 
cotmties    where    docketed,   entered  on 

judgment  docket 445 

seal  of  court  not  attached  to  process,  or  to 
certificates  of  deeds  to  be  served  or  reg- 
istered in  the  county 1847 

solicitor    notified   by,   of   orphans   without 

guardians  1610 

to  examine  records,  failure 88 

special  term,  judge  holding,  gets  certificate  of 

attendance  from 918 

statement  of  case,  on  appeals  from 864 


INDEX  TO  VOLUME  I. 


841 


r 


Clerks— Continued.  Section 

supervisors  of   roads,  report  of,   delivered 

by,  to  foreman  of  grand  jur^- 20^4 

supplementary  proceedings,  duties  of,  in —    495 

vacancy  in  office,  liow  filled 78 

wills,  production  of,  by  process  may  be  com- 
pelled by,  &c 2154 

SUPREME  COURT  (See  Const.,  Art.  IV,  §  15). 

allowed  a  room  in  the  capitol 953,    958 

commissioner  of  affidavits G-'il 

oath,  duties  and  compensation 958-9t)0,  3^38 

transcript  of  judgment,  when  and  to  whom 

sent  by  436 

Client, 
judgment  against  attorney,  keeping  money 

of .' 24 

Code  of  civil  procedure, 

applicable  to  special  proceedings 278 

to  justices  of  the  peace 849,  853 

Colored  persons, 

issue  of  certain,  inherit,  when (13)  1281 

Collateral  warranties,  &c., 

made  void,  deemed  contracts  only 1334 

Collection, 

letters  of,  when  issued 1383 

Collector, 

See  Executors  and  A  dmmiatrators. 
action  against,  brought  to  superior  comt  in 

term 215 

appointed,  when 1383 

authority  of 1385 

ceases  when 1386 

delivers  property,  &c.,  to  regularly  appointed 

representative 1386 

qualifications  and  bond 13S4 

oath 1387 

sells  personalty,  when 1409 

Color  of  title, 

possession  under,  what 139-141 

under  deed,  registered  and  destroyed Gl 

Colt, 
not  exempt  from  execution  for  payment  of 

season  price  of  stud,  &c 1797,  1798 

CouiQiiss loners  of  affidavits, 

appointed  by  whom 632 

certified  by  secretary  of   state,  certificate 

recorded  by  clerk C34 

certify  affidavits,  how 631 

effect  of 632 

clerks  of  courts  of  record  in  other  states 

are C40 

of  superior  and  supreme  courts,  and  notar- 
ies public  are G31 

evidence  of  appointment 634,    638 

fees  of 3741 

list  of,  sent  to  clerks 635 

to  be  printed 630,    037 

printed  in  acts,  conclusive  evidence 638 

names  of,    iLc,  recorded   by   secretary  of 

state 034 

oath  of,  before  whom  taken,  where  filed 633 

powers  of 632,    633 

proof  of  deeds  before,  in  other  states 1250 

m 


Section 
Commissioners  of  affidavits— Continued. 

revocations,  &c.,  published 639 

terms  of  office 632 

Commissioners 

FOR  SPECIAL  PURPOSES, 
report  or  return  of,  not  set  aside  for  trivial 

defects 28S 

appraisal  of  lands  for  raih-oad  purposes  1945,  1946 

for  telegraph  pui-poses 2010,  2013 

to  settle  coimty  boundaries 722 

TO  DRAIN  LOW  LANDS, 
appointment  of,  their  duties  and  powers, 

1297-1299,  1302,  1300,  1313-3314 
compensation 1323 

TO   DRAIN  SWAMP  LANDS, 

duties  of 1312 

surveyor  appointed 1313 

court  confirms  report  of,  when 1314 

TO  TAKE  DEPOSITIONS, 

powers  of 1302 

witnesses  before,  attendance  how  enforced. .  1303 

default 13t>4 

TO  MAKE  PARTITION, 
compensation,  duties  and  oath  of, 

1892-1896, 1901,  1902, 1913, 1910,  1922 

TO  BUILD  mLLS, 

compensation 1863 

duties  yjid  powers  of 1850-1853 

ALLOTTING  YEAR'S  SUPPORT, 

duties  and  powers 2122,  2123,  2132 

Commissions, 

on  final  account  allowed  executor 1524 

guardian 101 3 

Commitments, 

what  to  state 1163,  1238 

Common  Law, 

in  force  unless  altered  by  statute 641 

Complaint, 

allegations  not  denied,  admitted 268 

causes  of  actions  joined  in 267 

contents  of 232,  233 

demurrer  to 239 

objections  specified 240 

and  answer  to  causes  of  action  in 246 

filed  when 206 

failure 283 

in  action  against  county  and  mimicipal  cor- 

porati:)ns,  verification  and  contents 757 

to  recover  debt  for  purchase  of  land,  what 

to  set  forth 2M 

in  special  proceedings,  when  filed 281 

libel  and  slander,  how  stated  in 265 

objection  not  appearing,  taken  by  answer. ..    241 

official  bond,  in  action  on 1884 

proceedings  for  year's  support,  content*^  of..  2130 


842 


INDEX  TO  VOLUME  I. 


Compromise,  Section 

offer  ot  defendant  to 573 

effect *"■* 

Concealed  weapons, 

carrying,  a  misdemeanor IOCS 

Concealing, 

birth  ot  cUild '*'< 

Condemnation, 
of  lands  by  railroad,  &c.,  companies,  assess- 
ment of  damages  169S-1V09, 1943-1951,  S>010-»13 
Conditions, 

precedent,  how  pleaded 203 

Confession, 

of  judgment  without  action 570-572 

Congress, 
act  of,  regulating  authentication  of  records. 
Vol.  n,  Appendix, 
naturalization.  Vol.  II,  Appendix.  | 

removal  of  causes  from  state  to  federal 
court,  Vol.  II,  Appendix. 
Conspiracy, 

to  abduct  child 9"'* 

Constable, 

attending  jury  sworn 927 

board  of  supervisors  to  f  umish,  with  orders 
appointing  overseers;  to  apply  to  board 
for  orders,  and  serve  the  same  in  twenty 

days ;  penalty  on  both  for  neglect 2043 

bond  of,  registered  copy,  evidence;  fee  for 

registration ^^  I 

executes  notices  in  matters  in  justice's  juris- 
diction     ®^ 

feesot 5742 

oath  of 642 

penalty  for  failure  to  execute  process,  or 

making  false  return m2 

powers  and  duties '^^ 

special,  when  appointed ^5 

town,  to  serve  all  civil  and  criminal  process 

directed  to  him 3810 

vacancy,how  fiUed 646 

Constitution, 
of  the  United  States,  Vol.  II,  Appendix. 
of  North  Carolina,  Vol.  II,  Appendix. 

art.  7,  abrogated,  exceptions 818 

no  one  can  bold  office  contrary  to 1B70 


Contempt, 

assuming  to  be  officers,  punished  as  for. .  .(3)  654 
board  of  commissioners  may  punish,  when. .  652 
certain  acts  in  view  of   court,  tending  to 

interrupt  court (D,  (2).  (3)    648 

summarily  punished (iSO 

clerks  punished  for U)    8^4 

commonlaw  ot,  repealed (9)    M8 

disobedience  of  process (4)    648 

executors    and    administrators     failing   to 
render    annual    accounts   after   notice, 

attached  as  tor '''OO 

Jurors  summoned,  guilty  of  Improper  con- 
duct, punished  as  for (5)    6M 

magistrates,  interior,  punished  as  for (6)    654 

misbehavior  of  ofBcer t8)    648 


Contempt— Continued.  Section 

not  committed  in  presence  of  court,  offender 

may  show  cause,  how  punished 653 

parties  and  attorneys (3)    654 

proceedings  as  for ^^ 

what  necessary 656 

publishing  inaccurate  reports  of  coui-t  pro- 
ceedings   (^    64S 

punished  how ^^ 

by  whom *** 

referee,  misbehavior,  &c.,  before (2)    648 

refusal  to  be  sworn  or  answer (6)    648 

otparties ^°* 

sheriffs,  iic,  punished  as  for 664 

summoned  as  witnesses,  not  appearing,  pun- 
ished as  tor W    654 

supplementai-y  proceedings,  disobedience  to 

order,  punished  as  for 500 

trustees,  ordered  to  deposit,  tailing,  punished 

as  for 38£ 

Continuance, 

ottrial,  when ^1.    *** 

Contracts, 

joint,  suit  how  brought  on 187 

and  several,  smnmons  how  served ;  when 
not  served  on  all  defendants,  how  plain- 
tiff proceeds 222 

paities  not  summoned  in  action  on,  may 

be,  after  judgment 223 

tor  sale  or  purchase  ot  office,  void 1871 

lease  in  writing  when 1'^ 

new,  to  repel  bar  ot  statute  ot  limitations,  in 

writing l™ 

of  aliens,  validated * 

corporations,  when  in  writing  and  under 

seal *** 

to  answer  tor  the  debt,  &c.,  of  another,  or  to 
charge  executors,  personally,  must  be  in 

writing 

to  sell  land,  and  certain  leases  to  be  in  writ- 
ing and  registered  1264,  1554 

underand  without  seal,  limitations  on..  15^    155 

with  Cherokees,  to  be  in  writing 1553 

Contractors, 

commissioners  and  public  officers  cannot  be.  1011 
Contribution, 
among  legatees  and  devisees,  how  compelled  15.S4 

decree  for '539 

executor  petitions  tor.  &c...   1541 

specific  legatee  or  devisee,  when  entitled  to..  1585 
Controversy, 
coiu-t  may  determine:   all   parties  may  be 
brought  in;  defendant  may  interplead. . .    189 

without  action,  how  determined B67,  669 

judgment  roll 568 

Conveyances  1S45-1S80, 164&-1554 

See  Dads  and  Convij/ancu.—Void   Contracts 
and  Fraudulent  Comeyanett. 


155S 


Copartners, 

acknowledgment   ot    one,  after  dissolution 

does  not  bind  others 1^1 

joint  contracts  ot,  suit  how  brought 187 


INDEX  TO  VOLUME  I. 


843 


Copy,  Section 

of  book  account,  evidence  when 593 

of  certain  surveys  and  ofBcial  writings,  com- 
petent evidence 1342 

books,    papers   and  documents,  how   ob- 
tained      678 

deed  registered  in  wrong,  may  be  regis- 
tered in  proper,  county 1253 

lost  will  admitted  to  probate 57 

certiflcate  thereof,  evidence 58 

of  lost  papers  or  pleadings  may  be  used 600 

registered  deed,  evidence,  unless  original 

required 1351 

summons,  when  and  on  whom  served 217 

proof  by,  of  will  or  deed  in  other  state 1341 

Coroner, 

acts  as  sheriff,  when 658 

bond,  certified  copy  of,  is  evidence 662 

conditions,  who  to  take,  renewal,  &c 661 

duty  of.  physician  summoned  when 657 

inquest  how  conducted  by 657 

jurors  before,  allowed  compensation,  mile- 
age and  per  diem 659,    660 

process  how  served  by 598 

sheriff,  removed  from  office,  duty  of 2071 

coroner  gives  bonds,  and  takes  oaths  of 

office  befce  acting  as 2072 

Corporations, 
action  against,  judgment  roll  filed  with  sec- 
retary of  state 620 

to  annul,  when  and  how  brought 605 

leave  to  bring,  how  obtained 606 

answer,  by  officer,  on  oath 258,    492 

articles  of  agreement 677 

proved,  recorded,  sum  paid,  penalty  on 

clerk 678 

fees  of  clerk  for  recording 680 

attachment,  officer  to  furnish  certiflcate  of 

stock,  &c 369 

attorney  general  brings  action  against,  when 

604-608,  686, 1969 

banking,  forbidden  by,  when 684 

by-laws  of,  regulate  meetings 663-665 

chapter  sixteen  appUes  to,  exceptions  701 

charter  of,  expiring,  continued  to  wind  up. . .    667 

clerk  to  issue  letters  of ,  &c 679 

contracts  of,  when  in  writing 083 

conveyance  by  officer  selling,  what  to  set 

forth 674 

copy  of  articles,  evidence  when 682 

deeds  by,  how  executed 685 

void  as  to  existing  creditors,  &c 685 

debts  of,  to  be  paid  and  surplus  distributed 

670,  698 

dissolved,  for  what ....    QO-i 

dividends,  when  not  declared  by 681 

execution  against 619,671,    672 

exist  how  long 667,    687 

expiring,  receivers  appointed C68 

first  meeting,  how  called  605 

foreign,  action  against,  where  and  by  whom 

brought 194 

franchise,  sale  of 673  674 


Corporations— Continued.  Section 

purchaser  of,  what  action  to  bring 675 

injunction,    busmess   not  suspended  unless 

undertaking  given 343 

insurance  by,  forbidden 677 

interests  and  profits  of,  may  be  attached ....    362 

judgment  of  forfeiture  against 617 

jurisdiction  over  receivers  and  trustees  of . . .    669 
land,  amount  held  by,  and  how  conveyed  666,  085 

excess  of,  how  sold 692 

grand  jury  to  report  excess 691 

applicable  to  what  corporations 693 

forfeited  to  the  state,  not  subject  to  entry, 

how  sold  and  conveyed 692 

not  held  more  than  thirty  years 690 

letters  of  incorporation,  and  copies,  evidence, 

when  and  of  what 682 

liability  of,  after  sale '676 

non-user  for  two  years,  a  forfeiture 688,  694 

officer  seUing,  conveys  what 674 

personal  property  of,  sold  independent  of 

francluse 672 

powers  of , 663 

proceedings  for  dissolution,  summons  how 

served 694,695 

property  of  new  corporation,  not   exempt 

from  taxation 698 

not  exempt  from  execution  on  account  of 

mortgages  executed  by 1255 

receivers  appointed 379,    619 

duty  and  powers  of 668 

pay  debts  and  surplus 670 

sales  under  deeds  of  trust,  what  passes,  pur- 
chaser a  new  corporation,  succeeds  to 

certain  rights  and  duties 697,  698 

shares  in,  personal  estate 689 

attached  when 362 

statute  of  limitations,  not  applicable  to 
actions,  on  bills,  &c.,  of  moneyed  corpo- 
rations, nor  for  penalties  against  direc- 

torsthereof 174,    175 

actions   against   stockholders  of  certain 

banks,  barred 176 

supplementary  proceedings,  answer  by  offi- 
cer of 492 

stock  issued  by,  contrary  to  by-laws,  misde- 
meanor     664 

swamp  lands,  proprietor  when  declared  a. . .  1315 

by-laws  to  be  obeyed,  &c 1318 

corporate  name  and  officers 1316 

court  may  dissolve  1828 

owners  and  shares 1317 

payment  of  dues  1319 

privileges  of  infants 1320 

See  Swavip  Lands,  Vol.  II. 
taxes  on  legislative  bills, amendments,iS:c.  690,  2004 
taxes  collected  how,  on  property  of,  and  what 

sold 699 

order  of  court  not  necessary  to  sell  for, 

when 700 

Costs 

IN  CIVIL  ACTIONS, 
actions  prosecuted  by  the  state est 


844 


INDEX  TO  VOLUME  I. 


Cost8-Coutiaua\.  Section 

against  assignee  after  action  brought 630 

corporations,  how  collected 618 

executor,  &c ^ 

infant,  payable  by  guardian 5« 

sm-eties  prosecuted  tor  failure  to  maintain 

action ^ 

trustee  of  espress  trust ^ 

allowances  to  parties,  as °^ 

allowed  plaintiff ^ 

defendant "fj 

discretionary ' 

appeUant  from  justice  of  the  peace,  does  not 
recover,  when.. 


Costs— Continued. 


SbctioN 


6CG 


bastardy,  defendant  to  pay 


when 82 


caveated  wills,  how  paid  in °1"' 

defendant   unreasonably  defending   action, 

by  whom  paid -J^ 

divorce  and  alimony ~^^ 

execution  on,  paid  to  clerk,  penalty *'• 

executors  and   creditors,   allowed   against, 

when ■• 

guardians,  in  certain  cases  against  default- 
ing, by  whom  paid l*"'* 

habeas  corpus,  in,  how  awarded 1^60 

homestead  and  personal   property    exemp- 
tions, in  laying  off 510,    521 

in  name  of  state  for  person  or  corporation. . .    M, 

appeals  by  state  to  U.  S.  court B38 

appeals  from  justices'  court '>*^ 

plaintiff  may  be  compeUed  to  secure B64 

appeals  generally ^ 

pauper  suit,  not  recoverable  in  21. 

special  proceedings °*^ 

interlocutory,  how  adjusted  ^^2 

judgment,  how  inserted  in ^'~ 

landlord  and  tenant  act ^™  1 

lien  law,  under ^'°' 

lowlands,  in  proceedings  to  drain,  by  whom 

miii^^v.v;.v.-.v.-:.v.v.-:.::::.::::::.-V8o.,i8:3| 

partition  proceedings,  how  paid  m IW.,  im>. 

proceedings  for  year's  support "'^'  mto 

road  cases,  how  paid ^^ 

supreme  court,  execution  for,  on  appeals  to.^  9«« 

undertaking  tor,  mortgage  in  lieu  of 117, 120 

afBdavit  of  increase  of  value 1-' 

foreclosure J-" 

not  required  in  appeal  from  clerk H" 

IN  CRIIHINAL  ACTIONS, 

before  judges  and  magistrates H''^ 

bill  of,  open  to  inspection '^ 

convicted  persons  must  pay 1^1 1 

county  pays,  when ^89 

wherein  offence  committed  pays '■" 

Btatoment  of,  for  which  county  is  Uable, 

filed  with  commissioners '^ 

defendant  fading  to  pay  flneand,  may  be  ar- 
rested   

pays  upon  conviction,  confession  or  sub- 
mission   ^^ 

Imprisoned  party  to  pay,  before  discharge.  904,  Wj 


incurred  by  county  in  prosecuting  charges  of 
bribery  ,when  to  be  charge  against  state . .    V42 

itemized ' 

byclerks  ^ 

by  justices  of  the  peace  '*' 

judgment,  confession  of,  to  secure  fine  and, 
does  not  operate  as  a  discharge  of  origi- 
nal judgment '  ■*" 

justices  of  the  peace,  before,  by  whom  paid .    895 

prosecutor,  pays  when '»'.  '^ 

imprisoned  for  non-payment,  <Sc 738 

Cotton, 

unlawful  sale  of ^*" 

1007 

1008 


1029-1040 


weighing  of,  regulated 

oath  of  weigher 

Counsel, 

See  Aitorney. 

accused  allowed 1"5,  H^S,  1182 

assigned  in  pauper  suits 211 

Counterclaim, 

of  defendant  and  against  plaintiff aM,  245 

not  controverted  by  reply,  admitted 268 

plaintiff  entitled  to   judgment   for   excess 

^         „„  (2)385 

over ^' 

I  Counterfeiting, 

forgei-y,  &c 

County, 
action  by,  or  against,  in  name  of  board  of 

commissioners '"" 

against,  complaint  verified,  and  what  aUe- 

gations  to  contain  ^ 

body  politic  and  corporate J^ 

powers "l 

exercised  by  board -^  •     '~ 

boundaries  disputed,  how  settled 721,  722 

bridges,  contracts  to  build,  binding  on ;  board 

of  supenisors  erect 2084,  2085 

expense  borne  by  county 2060 

claims   audited   by    commissioners,  before 

.,  777 

I  paid 

numbered  and  copies  furnished  annuaUy 

to  chairman  of  commissioners 751 

presented  within  two  years  after  maturity 

,.        J                                                   ...    766 
or  barred 

presented  for  payment  and  refused,  before 

action  maintainable    '^^* 

speculation  in ><»» 

by  county  treasurer ''• 

commissioners,  power  of,  to  dispose  funds . .  -68 
costs  incurred  by,  in  prosecuting  chaigee  of 

bribery,  when  paid  by  slate  "i^ 

paid,  when  approved  and  audited ^SS 

paid  by ,  in  what  cases '3' 

couru,  transfer  of  suits  from,  to  superior  ^ 

nnanc^ommittee.'.; .■.■.■.■.■.".'.■.  ■768; 759,  700,  701-768 

money  in  bauds  of  clerks  and  sheriffs,  may 

be  used  by,  until  called  for,  by  owners. . .  1809 

officers  failure  to  perform  requirements,  &c., 

.    .  766 

misdemeanor 

failing  to  pay  over  and  account  for  funds. .    7M 

how  and  when  qualillcd •    (28)  707 


760 


INDEX  TO  VOLUME  I. 


845 


County— Continued.  Section 

revenue   and   charges,  annual    publication 

made '''53 

taxes  collected  by  sheriiT  as  state  taxes 723 

trial  in,  where  cause  of  action  arose 191 

where  offence  committed 1152,  1193 

where  subject-matter  situate 190 

where  plaintiff  or  defendant  resides 192 

trust  funds  and  property,  held  by  county 

treasurer 718,  779 

wherein  offence  committed,  pays  costs,  re- 
ceives fmes,  &c 741 

witnesses  in  criminal  actions,  paid  by,  &o.  740,  744 

defendant's,  paid  by,  when 747 

County  Commissioners, 
accounts  not  audited  by,  unless  itemized  and 

verified  by  claimant 754 

action,  when  brought  by,  on  bond  of  deUn- 

quent  officer 775 

approving  insufficient  bond  of  clerk,  Hable  as 

sureties 73 

bonds  issued  by,  for  wor)£  houses 796 

to  take  of  county  officers (28)    707 

chairman  may  send  for  persons,  papers,  &c., 

and  administer  oaths (30)  707 

clerk 'i'16 

compensatioii 710 

duties 712,713,  1878 

compensation  of  board 709 

not  paid  for  caUed  meetings 706 

contempt,  punished  by 652 

copies  of  records  of,  evidence 715 

court  houses  and  jails,  buUt  and  repaired  by    782 
dockets  for  justices  of  the  peace  furnished 

by 831 

election  of,  biennial 716 

furnish  books,  &c.,  for  clerk's  office 113 

jury    for    superior  coiirt  drawn  by — 1722-1731 

failing  to  draw,  what  done  1732 

how  drawn  for  special  terms 915 

meetings,  how  called,  when  held 706 

neglect  of  duty —    711 

official  bonds,  cannot  be  sureties  on 1887 

when  liable  us  sureties  on 1879 

when  liable  for  approving  insufficient 1880 

record  of  vote  approving,  conclusive  evi- 
dence of  Uabihty  and  guilt 1881 

powers  of 707 

to  appropriate  county  funds 753 

subscribe    to    railroad    companies,   how, 

when 1996, 1997 

estabhsh  and  discontinue  roads,  ferries  and 

bridges 2014,2023,2038,  2039 

approve  contracts  for  building  and  repair- 
ing bridges 2034,3060 

permit  toll  bridges  to  be  built 2015-2047 

regulate  tolls  of  f  en'ies 2046 

compel  owners  of  ferries  and  toll  bridges  to 

give  bonds 2048 

take  bonds  of  sheriff 2066 

elect  slierid,  when 2074 

failure  to  perform  duties.  Sic,  liable  for 
loFS,  &?.,,, .  3075 


Connte  Commissioners— Continued.       Section 

procffisioners  appointed  by 1984 

purchase  of  coiuity  indebtedness  by 718 

qualifications,  &c.,  of 708 

report,  annual,  of  public  funds,  made  to.  728-730 
statement  of  costs,  for  which  county  is  liable, 

to  be  filed  with 7.36 

treasurer,  action  on  bond  of,  when  brought 

by 771 

trust  funds,  condition  of,  yearly  exhibited  by 

coimty  treasurer  to  781 

record  of,  kept  by 780 

vacancy  in  board,  how  filled 719 

in  certain  county  offices,  filled  by 720 

work  houses  established  by 78G-790 

County  Treasurer, 

bond,  failure  to  give,  vacates  office 766 

of  sheriff  acting  as  769 

action  on,  when  and  by  whom  brought 771 

books,  papers  and  moneys  delivered  to  suc- 
cessor     767 

committee  to  examine,  &c 774 

claims  against  county,  when  paid  by 777 

speculation  in  by,  forbidden 772 

compensation  of 770 

duties  of 773 

failure  to  perform 776 

fines,  &c.,  duty  of,  concerning 96-99 

neglect 191 

county,  forfeitures,  &c.,  paid  to 724 

files  statement  of ,  &c 736,    727 

office  of,  includes  person  acting  as 770 

may  be  abolished  by  justices  of  the  peace.     768 
officers  of  coimty,  failing  to  settle,  fact  re- 
ported to  county  commissioners  by 775 

remitted  recognizances,  when  refunded  by. .  1207 
tax  on  articles  of  incorporation  received  from 

clerk  and  paid  to  common  schools,  &c. . .  678 
trust  funds  and  county  property  held  by .  .778,  779 
annual    condition  of,  reported  to  county 

commissioners 781 

Court, 
and  j  ury ,  how  long  attorney  may  address  —      30 

contempt  of 648 

how  punished 649 

summarily 650 

houses  repaired  by  county  commissioners. . .    783 

means  clerk,  when 133 

records  of,  prove  contents  of  lost  deeds,  de- 
positions and  other  papers 65 

transfer  of  suits  from  county  to  superior. ...    944 

tries  issues  of  law  unless  referred 308 

issues  of  fact,  when  jury  waived 403 

other  issues,  &c 399 

See  Inferior,  Justices  of  ttus  Peace,  Sjiperior 
and  Supreme. 
Creditors, 
bona  pie  conveyances  on  good  consideration, 

without  notice,  valid  against 1548 

deeds,  &c.,  to  defraud,  void 1515 

may  institute  proceedings  against  personal 
representative  for  accoimt  and  settle- 
ment    I'HS 


846 


INDEX  TO  VOLUME  I. 


Creditors— Continued.  Section 

proceedings  for  account  against  executors, 

&c et  atq.  1449 

voluntary  conveyances  not  deemed  fraudu- 
lent as  to,  merely  because  of  indebted- 
ness of  donors ;  indebtedness,  evidence  of 

fraud  to  be  left  to  jury 1547 

Crimes,  &c., 

abandonment  of  family  by  husband 970 

f ailm-e  to  provide  support,  presumptive  evi- 
dence of 971 

ftbductionof  children 973 

conspiracy  for 974 

abortion,  to  administer  medicines,  &c.,  to 

pregnant  woman 975 

procuring  miscarriage 976 

accessories,  felonies  before  the  fact 977 

how  punished 980 

after  the  fact 978 

principal  not  attainted 979 

adequate  support,  failure  of  husband  to  pro- 
vide      972 

adultery 1041 

adulterated  liquors,  making  or  selling 983 

poisonous 983 

receipts  for 984 

drugs,  making  and  selling 3142,  3145 

advertisements  and  legal  notices,  destruction, 

&c.,of 981 

agriculture,  board  of,  violation  of  rules  of  .(2)  2189 

animals,  cock-fighting 2183 

conveying  in  a  cruel  manner 2486 

cruelty,  any  act  of 2487 

food  for  impounded,  failure  to  provide 2484 

glandered,  sale  of 2488 

to  be  killed 2489 

money  for  impounded,  misapplication  of. .  8818 

releasing  impounded 2819 

riding  horse,  &c. ,  in  stock  law  territory  . . .  2829 

torturing,  &c 2482 

Arms,  public,  buying,  selling,  &c 8556 

refusal  to  give  up,  &c 8558 

arson  and  other  burnings 985 

appraiser  or  assessor,  conspiring  with  debtor 

or  creditor 517,  518 

artificial  islands,  &c.,  erecting,  <S:c 986 

assault,  punishment 987 

auditor,  accounts  of  public  printer 3633 

beacons,  injuring 3537 

bigamy,  defined,  punishment 988 

birds  cannot  be  killed,  when 2834 

partridges  and  quail  not  exported 2835 

nor  their  eggs  destroyed 2830 

wild  fowl,  hunting  at  night  and  on  Sunday  8837 

blackmailing  by  accusation,  Ac  989 

board  of  supervisors  failing  to  report 2021 

boats,  obstructing  with  timber,  &o 3711 

bribery,  of  jurors 990 

offering  a  bribe  992 

officers  receiving,  a  felony 991 

bridges,  toll,  failing  to  repair 2045 

breaking  or  injuring 993 

niU  owners  failing  to  keep  up 2037 


Crimes,  &c.— Continued.  Ssonoii 

railroads  must  build,  &o 2054 

buoys,  mooring  vessels  to 8085 

fouling  with  rafts,  &c 3067 

burglary 994 

intent  to  commit 997 

breaking  into  certain  houses 996 

breaking  out  of  dwelling  at  night . .    995 

burning  woods  without  notice 62 

buying  and  selling  offices 998 

castration,  with  maUce  aforethought 999 

without 1000 

cattle  and  stock,  distempered,  going  at  large  2322 

injuring,  in  unlawful  enclosure 1003 

feloniously 1068 

killed  on  railroad,  sometimes  indictable. . .  2327 

mismarking 1001 

stock  law  territory,  not  to  range  in 2811 

in,  not  to  range  out 2827 

wilful  killing  in  range,  &o 1002 

child,   and   parent,  carnal   intercourse   be- 
tween, felony 1060 

abandonment  of 970 

evidence  of 971 

abduction  of 973 

conspiracy  for 974 

adequate  support  for,  failure  to  provide. . .    978 

concealing  birth  of 1004 

marriage  with  female,  under  fifteen,  wrong, 

when 1088 

church,  disorderly  conduct  at 8672 

clerks  acting  before  qualification 79 

corruption  or  malpractice  of 128 

failing  to  give  certified  copy  of  election 

return 2749 

records,  &c.,  to  successor 81 

faUureotduty 88,101,    765 

to  post  his  fee  bUl 8740 

to  collect  license  tax  from  corporation 678 

false  swearing  to  rex)ort 92 

forbidden  to  practice  law 28,    110 

of  boards  of  commissioners  publish  yearly 

statements 714 

failing  in  duty 766 

commissioners,  <l'c.,  must  not  be  contrac- 
tors      1011 

neglect  of  duty  by 711 

by  clerk 714 

taking  insufficient  bonds  from  sheriff 2075 

from  other  officer 1880 

concealed  weapons  cannot  be  carried 1005 

concealing  birth  of  child 1004 

conspiracy  to  destroy  state  government HOT 

to  steal  child 974 

contempt,  how  punished  649 

cotton,  sale  of,  in  certain  hours 1006 

weigher's  oath 1008 

weighing,  regulated lOOT 

deduction  of  weight 80B6 

counterfeiting  bank  notes,  checks,  &c..  1080,  1081 

certificates  of  stock  by  oiTlcer,  <S:c 1082 

connecting  different  parts  of  several  genu- 
ine notes,  (Sc lOW 


INDEX  TO  VOLUME  I. 


847 


Crimes,  &c Continued.  Section 

counterfeited  stamps,  labels,  &c.,  selling 

merchandise  with lO^" 

foreign  coin,  or  attempting  to  pass 1035 

fraudulent  use  ot  brands,  &c 1040 

having  in  possession  instruments  for 1036 

private  marks,  labels,  &c 1038 

county  claims,  speculatiou  in V72,  1009 

officers  swearing  falsely  to  reports,  &c.  731,    T65 

crime  against  nature 1010 

committed   on    waters    dividing    counties, 

where  tried ^'^^ 

crops,  landlord  seizing ^''^^ 

lessee  or  cropper  removing 1''59 

dam,  owner  ot,  failing  to  make  gate,  <S:c.   ..    3715 
defendant  in  penal  suit,  swearing  falsely ....    932 

refusing  to  deUver  books,  papers,  &c 612 

dentistry,  practicing  without  oertiacate 3154 

directors,  &c.,  cannot  be  contractors 1011 

disorderly  conduct  at  church 3672 

dog  bitten  by  mad  dog  to  be  killed 2499 

fights 2483 

sheep-killing,  killed 2500 

listed  for  taxation,  subject  of  larceny 2503 

druggists,  adulterating  medicines,  &c. . .  3143,  3145 

failing  to  renew  license 3142 

dueUing l*'^^ 

death  following,  murder 1013 

education,  county  board  ot,  indictable,  when.  2554 

election,  betting  on S717 

breaking  up ^^^ 

bribes  given  or  taken  . .  2716 

convicts  voting  at 2733 

falsely  personating  a  voter 2732 

intimidating  voters 2716 

registration,  fraudulent,  a  crime 2680,  2709 

selling  liquors  on  day  of 2740 

embezzlement  by  ofttcer  of  railroad 1018 

ot  fines,  &c.,  by  ofBcer 3678,  3705 

treasurer  of  benevolent,  Ac,  Institution...  1017 

conspiracy  with  officer  of  railroad 1019 

state  bonds,  &c 1015 

trust  funds  by  public  officers 1016 

punished  as  larceny .' 1014 

sufficiency  of  indictment 1020 

enticement  of  servant 3120 

escape,  prison  breach  by  inmate 1021 

duty  of  solicitor  in  such  cases 1023 

officer  indictable  for,  what  to  prove 1022 

permitting,  ot  hired  convicts 3450 

executors  and  administrators  faUing  to  re- 
turn inventory 1307 

fairs,  persons  removed  from  grounds,  must 

not  return 2i95 

violation  of  rules 2796 

false  lights,  holding  out  on  coast 1024 

pleading  by  defendant 032 

pretence,  false  token,  cheating  by 1025 

obtaining  advances  upon 1037 

signatureby 1026 

felony,  bribery  of  general  assemblymen,  giv- 
en or  taken 2862 

carnal  kno  wledge  ot  married  woman,  &c. .  1103 


Crimea,  &c Continued.  Section 

forging  tobacco  inspector's  stamp 2995 

insurance  agent  appropriating  funds 3077 

sheriff  failing  to  make  election  returns. . . .  2708 

fences,  injuries  to 1063,  2820 

removing  division 2802 

fertilizers,  agents   of   transportation   make 

monthly  statement  ot  shipments 2195 

importing  into  state 2803 

offering  to  sell  condemned 2193,  2193 

unlicensed 2190 

firing  woods  without  notice 53 

fish,  non-resident  must  have  license  to  take..  2202 
packing  and  selling  in  unlicensed  measure.  3036 

trout,  mountain,  cannot  catch,  when 1122 

fisheries,  private,  molesting 2753,  3384 

fishing  on  Sunday  ^^ 

forcible  entry  and  detamer 1028 

forgery,  how  punished 1029 

counterfeiting  bank  notes,  checks,  &c 1030 

certificates  of  stock,  by  officer,  &c 1032 

foreign  coin,  or  attempting  to  pass 1035 


marks,  labels,  &c. 


1038 


fraudulent  use  of  brands 1040 

fraudulently  connecting  different  pieces  ot 

notes,  &c 1"^ 

having  in  possession  instruments  for,  &a..  1036 

passing  or  attempting 1031 

petition,  forging  or  using  names  to 1084 

selling  torged  judgments,  bonds,  &c 1033 

merchandise  with  stamps,  &c 1039 

fornication  and  adultery 1041 

gambling,  all  gaming  tables  prohibited 1045 

destroyed l''*^ 

betting  at  cards  in  tavern  or  retail  house. .  1042 

faro-banks  and  tables 1044 

iustices  and  other  officers  summon  wit- 

nesses lO^O 

keeper   of   tavern   or   liquor   shop,    how 

guilty !»« 

lotteries  forbidden 1047 

fale  ot  tickets 1048 

money  or  property  staked,  seized 1051 

persons  allowing  tables 1*46 

opposing  officers  in  discharge  of  above 

duties l''S2 

game.    See  Birds,  Wild  Fowl. 
gates,  &c.,  across  cartways,  injuring,  &c....  2057 
general  assembly,  bribery  of  member  of,  &c  2853 
investigating  committee  of,  failing  to  tes- 
tify before 2854 

false  oatH  before 2857 . 

ginseng,  cannot  dig,  when 1053 

habeas  corpus,  concealing  party 1654 

aiders  and  abettors 1^55 

refusing  copy  ot  process 1652 

writ,  false  return  to l^^^ 

neglect  to  obey 1^^ 

highways,  failing  to  work  on 2030 

overseer,  neglecting  duty 1054 

homestead,    officer,    &c.,    conspiring    with 
debtor  or  creditor 61 1 


tailing  to  lay  off. 


516 


848 


INDEX  TO  VOLUME  I. 


Crimes,  &<•.    Continued,  Section 

homicide,  muuslaughter 1055 

second  offence 1056 

murder 1057 

horse-stealing 1066 

for  temporary  purpose 1067 

horticultural  societies,  violating,  &c.,  rules 

of 2796 

'    hunting,  deer 1058 

in  certain  season 2832 

by  firelight 1058,  1059 

with  fire 2S:J9 

on  land  of  another  forbidden 28:31 

on  Sunday 1115,  2837 

impeachment  subjects  one  to  indictment —  3936 

incest 1061 

what,  a  felony 1000 

Injuries  to  churches,  houses,  &c 1062 

landmarks,  &c 1063 

malicious,  to  property,  personal 10^ 

real 1081 

monuments,  tombstones,  &c 1088 

inspector  acting  falsely 3046 

alteiring  brand  of  flour 3017 

forging  stamp  of  tobacco 2995 

insurance  agent  appropriating  f imds 3077 

refusing,  &c.,  to  deliver  books,  &c 3068 

jailers,  improper  confinement  of  prisoners. .  3471 
injuring  prisoners 3433 

jurors,  bribery  of 990 

justices  of  the  peace  cannot  practice  law 27 

granting  health  certificate  to  cattle  drover 

without  affidavit,  &c 2321 

qualified,  when 821 

six  months'  absence  from  township    dis- 
qualifies        822 

land,  trespass  on 1120,  2828 

on  state 1121 

entering  another's,  to  repair  break,  &c 8718 

landlord,  tenant  injuring  house,  fruit  trees, 
&c.,of 1761 

land  owner,  removing  division  fence 2802 

larceny  by  servant  of  master's  goods 1065 

concealment  or  destruction  of  wills 1072 

disposition  by  clerk,  &c.,  of  pubbc  laws, 

•      &c 1073 

distinction  between  grand  and  petit,  abol- 
ished    1075 

dogs  listed  for  taxation,  subjects  of 2502 

felonious  injury  and  pursuit  of  live  stock, 

&c 1068 

of  bank  notes,  &c 1064 

growing  crops 1069 

horse 1066 

for  temporary  purposes 1067 

or  obliteration  of  public  records 1071 

wood,  &c.,  growing  on  land,  &c 1070 

receiving  stolen  goods 1074 

liquor  selling,  retailing  without  license 1076 

to  minors 1077 

who  may  sue  dealer 1078 

in  dry  town 3116 

on  election  day 2740 


Crimes,  &c.~  Continued.  Section 

university,  at  or  near 2040-204o 

within    two    miles    of   public    speakings, 

&c 1079 

lotteries  forbidden 1047 

also  sale  of  tickets 1048 

maiming  with  malice  aforethought 1060 

without  malice  aforethought 1000 

malicious  injury  to  property,  personal 1083 

real 1081 

maltreating  hired  convicts 3450 

manslaughter 1055 

second  offence 1056 

marriages,  between  whites  and  blacks 1084 

register  of  deeds  cannot  consent  to 1085 

with  women  under  fourteen 1083 

mills,  destruction  or  obstruction  of  dams,&c.  1087 

keeping  false  toll  dish 1848 

owners  keep  bridges  over  canals,  ditches, 

&c 1086.  2037 

monuments  and  tombstones,  defacing,  &c. . .  1088 
mortgaged  property  cannot  be  disposed  of. .  1089 
municipal  officers  failing  to  give  up  property, 

&c.,  to  successors 3822 

failing  to  settle  with  treasurer 3814 

ordinances,  violation  of 3820 

murder 1057 

navigation,  obstruction  to 3303,  3537 

notes,  bills,  &c.,  circulating 2494 

issuing 2493 

notices  of  posted  land,  defacing 2830 

offices,  action  for  usurpation  of,  &c.,  defend- 
ant, &c ftI2 

buying  and  selling 998 

offlcere  failing  to  discharge  duties,  &c 1090 

execute  process,  &c 1112 

give  bond,  before  acting 1882 

lay  off  homestead 616 

falsely  swearing  to  reports.  &c 731, 765 

not  paying  fines  and  penalties  to  board  of 

education 3678 

oysters,  fish,  &c 3389 

partner,  effect  of  fraud  by 3100 

peddling  without  licenB© 1091 

perjury,  corruptly  taking  voter's  oath 2710 

punishment  for.. 1092 

subornation  of 1093 

swearing  falsely  before  investigating  com- 
mittee of  gen  eral  assembly 285f 

before  courts  inariial 3286 

petition,  forging  names  to,  &c 1034 

pilot,  neglect  of  duty  by 8588 

poisons,  retailing,  drugs,  <S:c.,  unlicensed . . .    3145 

political  societies,  secret 1095 

pork  barrel,  false  weight  of 3022 

practicing  trade,  &c.,  imlicensed 3704 

printing,  public,  account  for,  audited 3628 

prisoner  escaping  from  custody 3455 

punisbmeot,  felonies  not  specified 1096 

misdemeanors  not  specified 1097 

quarantine,  master,  &c.,  not  going  into 2894 

railroads,  Ac,  agents,  <S:c.,  furnish  statement 

of  gnano  shipped 2196 


INDEX  TO  VOLUME  I. 


849 


irinaes,  &e, — Continued. 


Section  ;  Crimes,  &c — Continued. 


cattle  killed  on,  a  misdemeanor,  when 2327 

cars,  entering,  forbidden  — 1979 

constructing,  contrary  to  law 1717 

conductor  or  driver  into;;icated 1973 

failing  to  build  bridges,  &c 2054 

cattle  guards 1875 

freights,  loading  and  unloading  on  Sun- 

day isra 

pooling  and  rebates  on 19(58 

injuries  to 197* 

obstruction  to,  when  death  results,  when 


not. 


1098 


otBcers  account  to  successors 2001 

tailing   to  report  to  board  of  improve- 
ments    1693 

train  of  cars,  made  up,  how 1971 

shooting  or  throwing  into,  &c HOC 

wilful  injury  to,  without  malice 1099 

rape,  punished,  death HM 

assault  with  mtent  IW^ 

assault    with    intent    to     know    married 

woman,  &c H"* 

carnal  knowledge  of  married  woman,  &c. .  1103 

proof,  sufBciency  of 1105 

rebellion  against  the  state 1106 

conspiracy  to  destroy  government  by 1107 

register  of  deeds  failing  in  duty 3659 

roads,  canals,  &c.,  obstructions   in;  when 

death  ensues,  when  not 1098 

faUingtowork 2030,2021 

obstructing,  leading  to  churches,  &o.  2005,  3669 

overseers  failing  in  duty 2023 

supervisors,  failure  of  duties  by 2024 

robbery  of  bank  notes,  &o 1064 

schools,  wilful  disturbance  of 2592 

seamen,  enticing  from  vessels 1108 

justices  issue  search  warrants  for 1110 

either  party  appeals 1111 

unlawful  to  harbor  or  secrete 1109 

servant  leaving  master 3120 

Bheriff  failing  to  execute  process 1112 

to  pay  over  taxes.  &o 3685 

failmg  in  duties,  &o 2091 

to  execute  writs  issued  by  board  of  im- 
provements   1721 

to  make  election  returns 2703,  2708 

pays  tax  levied  for  schools  to  county  treas- 
urer   2563 

failure 2600 

publishes  list  of  delmquent  tax  payers 2092 

signboards,  mile  marks,  &c.,  mjm-mg 2031 

slander  of  women 1113 

,    springs,  wells,  &c.,  injuring 1114 

church,  disturbing 3069 

stock  not  to  range  in  stock  law  territory 2811 

stock  law,  driving  horses,  &c./in  territory 


tax  collector  failing  to  give  up  lists  on  de- 
mand   3823 

telegraph  or  telephone  hues,  &c.,  mjuring. . .  1118 
tenant,  injuries  to  house,  fruit  trees,  &c.,  of 

landlord 1761 

terrapins  and  their  eggs,  regulations 3377 

timber,  firing  without  notice 52 

state,  cannot  be  cut 2410 

town  ordinance,  violation  of 3820 

treasurer,  county,  f ailme  of  duty 778 

reports  to  superintendent  public  instruction  2563 

state,  fraudulent  entries  by 1119 

tramps  entering  dwelling 3829 

wilful  injury  to  person,  property 3830 

trespass,  on  land H^O 

state  land H"* 

state  lots  in  Ealeigh 2313 

trout,  cannot  seine  for;   when  unlawful  to 

take 1122 

university,  billiard  and  gaming  tables 2644 

exhibitions  in  five  miles  of 2645 

liquor  seUing,  &c 2640-2643 

vagrancy  punished 3834 

vessel,  unlawful  to  anchor,  where 3086 

water  courses,  obstructing 1123 

poisoning,  &c.,  fish  in .' 1094 

wife,  abandonment  of 


of. 


Bvmday,  fishing,  on,  &c 1116 

hunting  on 1115,  3783 

process,  treason,  felony,  etc. ,  issued  on  —  928 
selling  li'quor  on 1 117 

swearing  before  justice  of  the  peace 848 


evidence  c 


.971,  1354 


adequate  support,  failure  to  provide 972 

carnal  knowledge  of 1103 

wild  fowl,  non-resident  cannot  shoot,  from 

blind 2840 

unlawful  to  kill  for  sale,  when 2840 

hunting  at  night,  on  Sunday,  &c 2837 

wood,  cutting  upon  state  lands  2418 

firing  without  notice 52 

woman,  abortion 975 

miscarriage 9(6 

slander  of m^ 

worship,  curiosities,  &c. ,  not  to  interfere  with.  3670 
selUng  liquor  within  a  mile  of  places  of, 

(to.,  exception 3671 

wrecks,  commissioner  of,  failing  in  duty. . . .  3865 

conceaUng  stranded  goods 3860 

receivers  of ,  &c 3661 

Criminal  proceedings, 
capital  cases,  prisoner  to  be  brought  before 
a  magistrate  of  the  county  where  war- 
rant issued,  or  before  some  judge 1142 

magistrate  may  associate  another  with  him  1159 
complainant  not  appearing,  the  accused  dis- 
charged;  otherwise,  court  hears  proof, 

and  decides  accordingly 1226 

costs  m,  before  judges  and  magistrates 1173 

courts  to  set  a  day  for  trial  of 1203 

duty  of  magistrate  on  complaint  made  of 

crime  committed 1133,  1217 

issues  warrant  for  arrest  of  accused 1134 

of  examining  magistrate H'l^ 

1140 


granting  bail 

■xainination^  and  recognizances  certilicd  to 
court  by  the  committmg  magistrate.U57,  UoP 


850 


INDEX  TO  VOLUME  I. 


Criminal  proceedings. — Continued.         Section 
improper  venue  talcen  advantage  of,  by  plea 
in  abatement;  on  issue  joined,  what  judg- 
ment rendered  in  felonies,  in  misdemean- 
ors, what 1194 

issue  at  any  time,  and  made  returnable  to 

any  day 1178 

new  trials  may  be  granted  defendants 1202 

notices  nisi 1208-1210 

party  complained  of,  when  discharged,  and 

when  imprisoned 1221 

how  discharged 1222 

peace  officers  arrest  without  warrant,  when.  1126 
pending  cases  untried,  transferred  to  succed- 

ing  court.  M-hether  inferior  or  superior. . .  1242 
person  arrested  taken  before  some  magis- 
trate of  the  county  wherein  offence  com- 
mitted or  before  any  judge 1138 

person  committing  breaches  of  the  peace,  in 
presence  of  court,  may  be  ordered  to  give 

security,  or  imprisoned —  1224 

participating  in  unlawful  games,  compelled 

to  testify,  not  to  be  prosecuted 1215 

prisoner  not  examined  by  magistrate  in  the 
presence  of  witnesses ;  witnesses  may  be 

examined  separately 1149 

testimony  of  witnesses  reduced  to  writing.  1150 

discharged,  when 1151 

when  bound  over 1152 

magistrate  not  required  to  take  down  ex- 
amination of,  cliarged  with  misdemean- 
or  1153 

process,  who  may  issue  criminal 1132 

prosecuting  attorneys  direct  post  mortem  ex- 
aminations    1214 

term    expirmg   during   progress   of    trial, 

judge  shall  continue 1229 

warrant,  before  wlrnt  magistrates,  return- 
able   1143 

duty  of  magistrate  on  return  of 1220 

when  issued  by  magistrate 1218 

to  whom  directed 1219 

where  to  run 1135 

how  indorsed 1136 

witness,  defendant  is  competent  in  his  own 
behalf;  husband  or  wife  of   defendant 

competent  for  defendant 1853 

testimony  of,  reduced  to  writing 1150 

See  Arrest,  Indictment,  Mecognizancea,  Warrant. 
Criminals, 

speedy  trials  of 1241,1242,  1658 

Crops, 
laborer's  share  of,  exempt  from  execution 

against  employer — •■ 1T96 

possession  of,  deemed  vested  in  lessors,  pre- 
ference of  lessor'slien 1754 

rights  of  lessee 1755 

removal  of,  by  lessee  or   cropper  without 

notice,  misdemeanor 1759 

ungathered  at  decease,  personal  assets 1407 

unlawful  seizure  by  landlord,  ft  misde- 
meanor   1759 

See  hemor.  Laiuilori. 


Curtesy,  Sbction 

husband  tenant  by 1838 

not  affected  by  wife's  will 2138 

Dam, 
earth  for,  how  taken  in  draining  low  lands; 
owner  of    land  may  adjoin    bis    own, 

when 1301 

land  condemned  for 1849 

mill,  when  abated  as  nuisance,  damages 1859 

persons  interested,  contribute  to  repair 1310 

See  Draining  and  Damming  Lowlands,  Miils. 
Damages, 

accidental,  by  fire,  tenant  not  liable 1751 

lessee  may  surrender  his  estate 1753 

action  for  wrongful  act  or  neglect  causing 

death,  measure  of 1499 

recovery,  how  applied 1500 

assessed  in  certain  cases 411 

by  lessee  against  lessor  for  removal  from 

possession 1776 

for  occupation,  recovered  to  time  of  trial —  1775 
in  actions  for  recovery  of  specific  property . .    409 
proceeding   to  drain  low  lands,  paid  by 

petitioner 1899 

injunction,  how  ascertained 841,    343 

rates  of , 480 

recovered,  when  judgment  for  person  en- 
titled to  office 613 

twelve  per  cent.,  recoverable  from  sheriffs, 
clerks  and  other  officers  on  money  un- 
lawfully detained 1890 

Death, 

actions  svuTive,  when 1490, 1491 ,  1497, 1498 

between  verdict  and  judgment  not  allowed 

as  error,  when 938 

measure  of  damages  for  act  causing 1499,  1500 

penalty,  how  executed 1343,  1244 

of  person  entitled  to  bring,  or  against  whom 

action  brought,  limitation 164 

Debtors, 

See  Execution. 

leaving  state,  &c. ,  arrested  when (4)    488 

persons  removing,  &c.,  to  hinder  or  defraud 

creditors,  Uable  for  their  debts 1551 

Debts, 

due  from  deceased  person,  how  paid 1416-1428 

priority  of   payment  observed   by  persons 

liable  for,  of  decedent 1681 

See  Exctutors  and  Administrators,  Debts. 
Deeds  and  Conveyances, 
bona  Jide,  made  by  husband  before  M  of  April, 
1867,  not  affected  by  widow's  claim  for 

dower •  —  211B 

chattel  mortgage,  form 1278 

good  from  registration 1274 

clerk  of  superior  court  may  issue  commission 

to  take  proof  of,  in  another  state 1288 

not  to  attach  seal  o(  court  to  certificate  of 
deeds,  &c.,  to  be  registered  In  the  county  1247 
conditional  sales  of  personal  property  to  be 

in  writing  and  registered 127B 

contingent  limitations  in  oertaio,  how  con- 
strued    1887 


INDEX  TO  VOLUME  I. 


851 


Deeds  and  conveyances — Continued.     Section 

contracts  to  seU  lands  and  leases  to  be  in 
writing,  registration • 1-" 

copies  of,  evidence,  unless  original  required, 
^  1251, 1263 

corporations,  of,  void  as  to  whom 08o 

property  of,  not  exempt  from  execution 
on  account  of  provision  in  mortgage 
deed ^^^ 

courts  may  compel  parties  to  execute  and 

deliver,  in  partition '^^^ 

devisee  of,  made  witbin  two  years  from 
grant  of  letters,  void 1^ 

donations  to  persons,  while  in  slavery 1278 

errors  in  registration  of,  corrected  by  peti- 
tion, appeal ■' 

executors  and  administrators,  made  by,  to 
purchaser  of  lands  under  contract  of  de- 
ceased, &c ^^^~ 

fee,  construed  to  be  in,  unless  otherwise  ex- 


1276 


fraudulent 1"5-15*7 

gift,  of,  bow  proved  and  registered 1252 

registered  in  wrong  county,  copy  registered 

in  right  county ^~^ 

grants,  time  for  registering,  extended 1270 

ETiardian,  father   or   mother,  may  appoint 

^     by... 1562-1564 

heir,  of,  made  within  two  years  from  grant 

of  letters,  void ^^ 

heirs,"  the  word  unnecessary  in 1280 

infant  trustees,  how  to  convey  title 1265 

husband,  of,  and  wife,  how  executed,  proved 

and  registered ^^® 

under  power  of  attorney  from,  to  convey 

lands ^^'^ 

judgment   or   decree,  when   regarded  and 

registered  as 426,427 

lost,  how  replaced 56-64,67 

registered  and  lost,  and  the  registry  also 
destroyed,  presumed  to  have  been  in  due 

form  and  in  fee 1^*^ 

what  copies  of,  may  be  recorded 66 

marriage  settlements,  void  as  to  creditors, 

unless  registered 1269 

what  good  against  creditors 1270 

officers,  by,  who  sell  property  under  execu- 
tion     4"^ 

power  of  attorney,  how  proved  in  or  out  of 

state 1^9 

privy  examination  of  married  woman,  how 

and  when  taken  and  certified (5)  (6)  1246 

probate  of,  how  and  before  whom  taken, 

949, 1246,  1248 

form  of  certificate C7)  1246 

erantor,  &c.,  in  U.  S.,  but  out  of  state, 

(3)  (8)  1246, 1250,  1268 

grantor,  &c. ,  out  of  United  States (1)  1246 

grantor,  &c.,  in  state,  not  in  county (2)  1216 

grantor,  &c.,  in  county CI)  1245 

witness,  none,  and  maker  non-resident  or 

dead W124« 

If  witness  dead (10)1216 


Deeds  :ind  conreynnces— Continued.       Section 
when  land  lies  in  two  or  more  counties  . . .  1248 
proof  of ,  before  commissioners  and  clerks  of 

courts  of  record  in  other  states..  640, 1250,  1258 
registration  of,  to  be  made  m  two  years,  or 

'  not  valid I**' 

when  registered,  good  without  livery  of 

seizin,  attornment,  &c 1245 

sheriff  selling  land  and  dying,  er  going  out  of 
ofBce,  before  making,  successor,  &c.,  to 

make ■ ^^ 

surveys,  common,  may  be  recorded  as 1277 

trust,  good  against  creditors  from  registrar 

tiononly 1™ 

how  discharged  and  released ■•  •  •  1*" 

to   secure   purchase  money  need  not  be 

signed  by  wife ^^^ 

tnistee  in,  clerk  of  the  superior  court  ap- 
points when 

unborn  infant  may  take  by I'''''' 

vaUdation  of  certain  probates  and  registra- 
tions of ,  evidence 1^9-1263 

void,  see  Void  Contracts,  Void  Convet/ancea. 

witnesses  may  be  summoned  to  prove 1268 

Default, 

judgment  by,  final ^ 

by,  and  inquiry '**' 

Defendant, 
competent  witness  for,  husband  or  wife  of. . .  li»3 

costs,  when  aUowed ^ 

files  bond  in  action  to  recover  land 237 

name  unknown,  may  be  sued  by  any  name 

221,  275 
not  originally  served  on  joint  contracts,  may 
be  summoned  after  judgment  to  show 
cause  why  judgment  should  not  bind 

bim 

Offer  of,  to  liquidate  damages  conditionally, 

effect  of  refusal,  &c 575,  576 

when  summoned  by  publication,  can  defend 
before  or  after  judgment;  exception,  di- 

.  SSX) 

vorce 

when  unknown  to  plaintiff,  served  with  no- 
tice bypubhcation 

Demand, 
of  payment  of  bill,  protest  of  proper  ofBcer, 

evidence  of 

of  payment  of  claims  against  county  before 

action 

of  rents  in  arrears,  when  not  necessary 
Demurrer, 

answer  in  lieu  of,  when • 

demurrer *^*''    ^ 

filed,  when 

frivolous,  judgment  on ; 

objection  not  taken  by,  waived,  exception^.    S4- 

to  answer ' 

to  complaint,  when ^^ 

grounds  specified 

to  reply 

Deposit, 
filed  in  Ueu  of  undertaking  or  bail, 

809,  298,  311.  312,  553 


323 


221 


..  1745 


241 


150 


INDEX  TO  VOLUME  I. 


Deposit— Continuid.  Section 

judge  may  punish  failure  to  obey  order  to 

make 381 

Deposition, 

comraissionei"S  to  take,  powers,  &c 1302 

how  taken 13"'" 

after  removal  of  cause  from  one  county  to 

another 1371 

In   civil  actions,    before   a  justice   of    the 

peace 13o9 

not  quashed  after  trial  has  begun 1300 

objection  to,  must  be  made  before  trial 1301 

what  may  be  read  on  the  trial 1358 

Devise. 
See  Wills. 
construed  in  fee,  unless  contrary  intention 

appears 2180 

lapsed  and   void,  to  pass  under   residuary 

clause 2142 

Deputy 

clerk  not  allowed  to  practice  law 38 

of  superior  court,  oath  of T5 

Descent, 

rules  of 1281 

Devastavit. 

See  Exceptors  and  Administrators. 
executors  or   administrators   of  executors, 

how  chargeable 1495 

payments   made  prior  to  1st  of  July,  1860, 

not,  when 1434 

by  executors  of  estates  thought  to  be  sol- 
vent, but    rendered  insolvent    by  war, 

valid 1406 

Disabilities, 

cumulative 140 

in  favor  of  parties  claiming    land  for  im- 
provements     486 

kinds  of,  limitations  how  affected  by 148 

not  available  unless  existing  when  right  of 

action  accrued 169 

persons  under,  actions  by,  limitation 163 

several     co-existing,     limitation     attaches, 

when 1"0 

Disclaimer 

of  title  by  defendant 577 

Discovery, 

action  of,  abolished 570 

Dissent, 
by  widow  to  husband's  will,  made  within  six 

months  after  probate 2108 

effect 2109 

Dissolution, 

of  corporation,  does  not  extinguish  debts —    087 
Distribittions, 

statute  of 1478,1486,1487 

Districts, 

congressional,  counties  composing 2710 

judicial,  counties  composing 010 

senatorial,  counties  composing 2844 

Dltcli, 
fences  or  paths  across,  made  by  proprietor 

in  draining  lowlands,  when 1300 

kept  up  and  bridged,  by  whom 2036 


Dividends,  Section 

in  partition,  bear  interest  until  paid 1899 

charged  on  minors,  when  payable 1900 

of  corporations,  when  declared 681 

Divorce, 

affidavit  filed  with  complaint,  provisos 1281 

alimony  on,  from  bed  and  board,  &c., 

1290, 1291, 129S 

a  mensa  et  th&ro,  causes  sufficient  for 1286 

consequences  of,  on  property  of  the  parties. .  1&4S 

on  personal  relations 1205 

on  right  to  custody  of  children 1290 

jurisdiction,  superior  court  has 12K2 

marriages,  what  void 1284 

on  application  of  the  parties 128S 

for  what  causes  dissolved 1285 

parents  divorced,  custody  of  children  fixed 

by  court 1290, 1570 

guardian  of  estate,  how  appointed 1571 

pregnancy,  on    grounds  of,  facts  tried  by 

jurj' ;  either  party  can  testify 1288 

secm'ity  for  costs  on  appUcation  for 3294 

venue  in  proceedings  for 1289 

wife    not    suing    for,  entitled   to    alimony 

when 1292 

Dower, 
alienation  of  husband  alone,  not  to  convey. . .  2106 
apportioned  how,  in  partition  proceedings. . .  1909 

assigned  by  heir  or  devisee,  when 2110, 2113 

barred,  when 2107 

bo7ia  fide  conveyances  of  husband  made  be- 
fore 2d  April,1867,  not  affected  by  widow's 

claim  for 2115 

delinltion  of 2102,  2103 

jury  may  allot,  in  one  or  more  tracts.  &c —  2103 

not  liable  for  debts  of  husband 2104,  2)65 

petition  for 2111 

who  must  be  parties 2112 

notices  to  parties 2114 

assigned,  how 2113 

widow,  effect  of  her  adultery  on 2102 

Draining  and  damming;  lowlands, 
canals,  dams  and  ditehes,  all  interested,  to 

assist  in  repairing 1310 

assignees  bound  to  repair  as  owners 1309 

drainage  of,  on  a  large  scale .'.  1311 

earth  excavated  for,  removed  or  leveled . . .  1808 
earth  for  dam,  how  taken;  owner  of  land 

may  adjoin  his  own 1801 

fences,  paths,  Ac,  across,  made  by  owner, 

when 1800 

manner  of  proceeding  for  joint  repairs  of  1807 

failure  to  work.  &c 1308 

no,  through  yards,  &c.,  nor  to  create  a 

nuisance  in  any  way 1299 

owner  of  land  not  to  drain  within  thirty 

feet  of 1804 

proceeding  to  drain  into 1305 

commissioners  appoint  a  sui-veyor 1313 

assess  and  apportion  labor 1806 

cotirt  appoints  three 1297,  1818 

duty  of,  in  general    1298 

court  contlrms  report  of ,  when 1314 


INDEX  TO  VOLUME  I. 


R53 


Section 
Draining  and  damming  lowlands— Continued. 

designate  width  ot  land  tor  canal 1302 

report  to  court  on  payment  of  damages, 

costs,&o 1299 

coi-poration    formed    for,    &c.,   name   and 

officers l^lj' 

court  may  dissolve '322 

obedience  to  laws,  &c.,  proviso 1318 

owners  and  shares 1317 

pioprietors  declared  a 1315 

costs,  how  regulated 13-3 

damage  to  land 1321 

infants,  privileges  of 1320 

proceedings,  a  special  proceeding  1324 

Draw  bridges, 

county  erects,  where  necessary 2053 

owners  of  steamboats,  &c.,  notify  owners  of 

bridges  to  construct  draws 2052,  3719 

railroad  companies,  &c.,  maintain,  &c 2051 


Evidence,  Section 

against    principal,  good    against  surety  in 

suits  on  bonds  of  officers  or  trustees...  1345 

bo.  'k  accounts,  when  and  how  proved 591,  593 

certain  deeds  and  certified  copies  received 

in 1263 

certified  copies   of  wills  or  deeds  m  other 

states,  received  as 1314 

copy  of  judgment  ot  court  from  register's 

r^m^a 428 


Drawer, 

of  bill,  liability 

Dueling, 

penalties  for 1012, 1 

Basement, 

petitioner  in  proceedings  to  drain  lowlands 
to  be  seized  in  fee  of,  on  paying  costs  and 


S^ectment, 

action  of,  to  dispossess  tenants  or  lessees, 

1766-17 
forms  of  proceedmg  for  summary,  before 
justice  of  the  peace,  of  tenants  holding 

over ^' 

See  Proj>eTty,  real. 
Blopement, 
by  wife  with  an  adulterer,  consequences, 

1481,  1844,  2102,  2116 
Kmbezzlement, 

See  Crimes,  Emiezzlement. 

agent,  &c.,  arrested  in  actionfor (2)    291 

Entry, 

on  real  property,  when  sufficient,  &c 140,    145 

Equity  suits, 

transfer  of ,  to  superior  court 944 

Error, 
or  defects  in  pleading,  immaterial,  not  re- 

ga.ded 270 

in  registration  of  deeds   and  other  instru- 
ments, corrected  by  petition ;  appeal 1266 

writs  of,  abolished 544 

Escape, 

action  tor,  limitation l-'iO 

sheriff  permitting,  ot  debtor,  liable  tor  debt..  2083 

See  Crimes,  Escape 1021-1023 

Estates, 
Conveyance  to  uses,  possession  transferred 

to  use  without  livery 1330 

in  joint  tenancy,  share  of  deceased  co-tenant 
does  not  vest  in  survivor,  proviso  as  to 

partners  in  trade 1326 

tail  converted  into  tee  simple 1325 


ot  records  of  county  commissioners i  la 

ot   surveys  and  official  writings,  compe- 
tent  1341,1343 

incompetent,  what 1354 

in  land  suits  in  Haywood  and  Henderson 

counties l*!^ 

mortuary  tables  received  as 1352 

necessary  to  support  title  vmder  H.  E.  Mc- 

Culloch 1336, 1337 

of  demand  ot  payment  ot    bill,  protest  ot 

proper  officer,  is ^^ 

attorney  in  cases  ot  fraud,  where  state  is 

concerned 1349 

lost  deeds  and  wills 1348,  2183 

laws  of  other  states  and  countries 1338 

parties,  rebutted B83 

records  of  administration  or  letters  testa- 
mentary in  other  states 1343 

statutes,  how  received  as 1338-1340 

who  may  testify 580,  587-590, 1350, 1361,  1363 

Exceptions, 

upontrial,when  and  how  taken 412-418 

Execution, 

GENERALLY. 
Advertisement,  personal  property,  sold  un- 
der     4«' 

real  property  sold  under 458 

against  personal  representative,  form  and 

effect 1«1.  1509 

by  representative 1^13 

bastardy,  execution  in  3' 

bidders,  no  sale  tor  lack  of,  officer  states 

what ■162 

bond,  forthcoming,  of  property 463 

how  proceeded  on ^^ 

surety  on,  furnished  with  list 464 

colts  not  exempt  from,  for  payment  of  stand, 


1798 

confession  of  judgment  without  action 572 

corporations ' 

highest  bidder  at  sale,  who  deemed 673 

personalty  ot,  sold  under,  independent  ot 

franchise '  * 

costs  on,  paid  to  clerk,  penalty, *'~ 

counties,  to  what,  issu<vl *^ 

date  ot  issue,  noted  on,  by  clerks,  <Sc lOO 

deeds  under,  what  passes *" 

dymg  in,  debt  not  extinguished ;  new  execu- 
tion against  property *'^^ 

executor,  succeeding  may  issue,  on  judg- 
ment obtained  by  pred>;ce.ssor  or  dece- 
dent   1^1* 


854 


INDEX  TO  VOLUME  I. 


Execution— continued.  Section 

form  of 448 

in  action  to  recover  land  debt 

horses,  account  for  keeping,  &c.,  made  out 

and  fiied  by  officer 4G7 

allowance  made,  for  keeping 46G 

issues  from  what  court  and  to  what  coun- 
ties     444 

within  six  weeks,  &c 470 

judgment  enforced  by 441 

may  be  paid  before  issued 438 

justice  of  the  peace,  lien,  and  from  what 

time 841 

stay  of,  from  what  time  and   by  whom 

granted 842 

security  on 843 

kinds  of 442 

leave  to  issue,  how  obtained 437,  440 

lien  of,  as  to  personal  property 448 

married  woman,  against 443 

of  capital  offenders,  method,  &c 1243, 1214 

on  hen  judgments 1791,  1794 

party  in,  not  discharged  on  habeas  corpus  or 

certiorari^  when 937 

person,  against,  in  what  eases 447 

principal,  property  of,  levied  on  and  sold  un- 
der, before  that  of  sm-ety 2101 

property  sold  under 450 

real,  where  sold 443 

equity  of  redemption  sold,  deed  to  show 

what 451 

rateable  part,  for,  when 1509 

return,  failure  to  make  due,  judgment  nisi, 


&c. 


446 

where  made 444 

noted    on  judgment  docket,  clerk  sends 

copies 445 

sale  days 454 

hours  of,  under 459 

of  land,  notice  served  on  defendants,  in  cer- 
tain cases  on  governor  457 

of  land,  under  private  acts  repealed 458 

postponed  from  day  to  day,  how  long 455 

selling  contrary  to  law,  penalty 461 

supreme  court,  tor  costs  on  appeal  to 968 

suspended  when 256,  649,  554-561 

bond  required 256,  549,  654 

tested  and  returnable,  how 449 

title  of  property  defective,  purchaser  sues 

defendant  In 468 

CLAIM  FOR  IMPROVEMENTS,  BEFORE 

issurNQ, 

not    applicable    to    actions    by  mortgagee 

against  mortgagor 481 

defendant  in  action  for  land ,  flies  petition  for; 

meanwhile,  suspended 473 

annual  value  of  land,  how  ascertained 474 

defendant  claiming  allowance,  plaintiff  may 
have  his  estate  valued  without  Improve- 
ments   482 

value,  how  made 483 


Execution— Continued.  Section 

valuation  paid,  defendant  takes  premises 484 

valuation  paid  into  court;  if  not,  land  sold ; 

defendant  not  bound  for  deficiency 485 

plaintilf  under  disability,  proceeds  of  sale 
deemed  real  estate,  and  disposed  of  by 

court 486 

defendant  evicted   by  better  title,  recovers 

from  plaintiff 487 

plaintiif  clahning  a  life  estate,  and  paying 
defendant,  allowance,  recovers  of  re- 
mainderman     480 

after  offsetting  damages,  itc,  and  allowances 
for  improvements,  verdict  for  balance. . .    478 

lien  of  such  balance 479 

value  of  improvements,  how  estimated 478 

defendant  not  liable  for  more  than  three 
years  value  of  land,  unless  he  claims  im- 
provements     475 

rents  balanced  by  improvements 477 

PROCEEDINGS  SUPPLEMENTARY  TO, 

execution  returned  imsatisfled,  defendan/ 
ordered  to  answer  concerning  his  prop- 
erty   (1)    488 

not  returned,  order  upon  affidavit;  contents 

of (2)    488 

to  issue  notwithstanding,  defendant  may 
have  certain  property (2)    488 

either  party  examined  as  witness (3)    488 

not  excused  from  answering,  because  it  may 
criminate,  nor  because  of  fraud (5)    488 

debtor  leaving  state,  or  concealing  himself, 

arrested  when,  undertaking  given (4)    488 

transfer  of  property  forbidden,  when (6)    488 

debtor  of  defendant  in  judgment  pays  sheriff 
when 489 

person  having  property  of  judgment  debtor, 
or  owing  him,  upon  afSdavit,  ordered  to 
appear  and  answer 490 

joint  debtors,  how  proceeded  against 490 

witness  to  testify  as  on  trial  of  an  issue 491 

to  appear  before    referee;   compelled  to 
answer;  examination  certified  to  judge, 

492,    493 

property  not  exempt,  applied  to  payment  of, 
exception 493 

receivers  appointed  by  judge;  transfer  of 
property  forbidden ;  other  creditors  hav- 
ing instituted  supplementary  proceed- 
ings ;  notified,  one  receiver  appointed . . .    494 

clerk  of  the  superior  court  files  order  ap- 
pointing receiver ;  receiver  provided  with 
a  copy ;  property  vested  in  receiver  sub- 
ject to  control  of  judge 405 

order  appointing  receiver  filed  before  he  is 

vested  with  real  property 496 

property  claimed  by  a  third  party  or  debt  de- 
nied, receiver  tries  action 497 

reference  may  be  ordered  by  Judge,  referee 
to  report 4gg 

costs  allowed  judgment  creditor 4M 


INDEX  TO  VOLUME  I. 


855 


Execution— Continued.  Section 

PEOPEETY  SOLD  UNDEE, 

equity  of  redemption (3)  460 

what  sheriff  sets  forth  in  deed 451 

goods,  chattels,  &c (1)  450 

homestead,  for  obligations  contracted  for  its 

purchase (3),  W  BOl 

leasehold 18)  «0 

officer  prepares  deeds 471 

trustestates (4)  450 

purchaser  holds  the   same  discharged   of 

trust : 453 


PEOPEETY  EXEMPT  FEOM  SALE  UNDEE. 


gi-owmg  crops,  until  matured 453 

laborer's  share  of,  &c I'l'SS 

debts,  &c.,  prior  to  25th  February ,  1867,  what 

exempt (1)    501 

since  25th  February,  1867,  and  before  34th 

April,  1868 (2)    501 

since  34th  April,  1868,  and  before  1st  May, 

1877 (3)    601 

since  1st  May,  1877 (4)    501 

appraisers  summoned  by  sheriff 503 

duty  of 603 

make  return 604 

to  elect  when 606 

oath  and  fees  of 508,3747 

appraisal  or  assessment  set  aside  for  what, 

final  when 623 

assessors  set  apart  personal  property,  and 

mal£eretum 518 

costs,  how  taxed  and  by  whom  paid 510 

of  reassessment,  how  paid 521 

defendant  to  elect  homestead,  &c 501-607 

homestead,  what  included  in 509 

set  off  upon  petition 611 

levy  made  on  excess,  form  of 605 

officer  making  levy,  refusing,  &c.,  to  lay  off 

homestead 616 

appraiser    or    assessor    conspiring    with 

debtor 617 

with  creditor 618 

objections  to  homestead,  when,  where  and 

bywhom  taken 519,    620 

objector  to  give  undertaking 622 

personal  property,  how  appraised,  return, 

how  made 607 

person  entitled  to  homestead  dying,  who  en- 
titled     614 

petition  filed  and  advertisement  made 615 

register  to  indorse  on  return,  its  date  and  to 

register  the  same 513 

returns  of  homestead  allotments,  <S:c. ,  decided 

by  coui-t ;  clerk  to  file  with  register,  &c . .    634 

forms  in  homestead  proceedings 634 

husband's  interest  in  real  estate  of  wife 1840 

property  exhibited  at  fairs,  exempt  from, 

how  long 2797 

widow's  dower,  to  what  extent 3104,  3105 


Executors  and  Admlnlstratorg,  Skotiom 

account,  of  sale  returned  when 1399 

compelled ;  not  returned  after  citation,  of- 
fice vacated,  misdemeanor 1397 

annual,  to  be  rendered 1398 

not  rendered  after  citation,  attached  for 

contempt,  office  vacated 1400 

creditors  may  institute  proceedings  for ... .  1448 
executor,  &c.,  may  file  petition  for  settle- 
ment and 

taking  final,  sums  reserved  for  costs  in  cer- 
tain cases '*°' 

final,  taken  after  two  years;  may  be  taken 

earlier J*** 

action  against  executors,  no  lien  on  assets...  1432 
new,  may    be    commenced    by    executor 
within  one  year  after  non-suit,  reversal 

or  arrest  of  judgment 168 

action   may  be  brought  to  term,  judge  to 

order  account,  and  grant  other  relief 215 

executor,  administrator  or  trustee  of  ex- 
press trust,  may  bring,  without  joinmg 

cestui  que  trust 1^^ 

survives  when 1490,1497 

does  not  survive,  when ^^" 

wrongful  act  or  neglect  causing  death,  sur- 
vives   1«8 

when  real  party  in  interest  is  the  estate 
of  the  deceased,  must  be  by,  or  against 
personal  representative  in  that  capac- 


ity. 


1507 


in  such,  all  are  regarded  as  one  person; 
summons  served  on  one,  judgment  may 

be  against  all 1508 

against  executors,  &c.,  by  creditors,  exe- 
cution issues,  when 1609 

admmistration,  letters,  to  whom  granted  ....  1376 

to  whom  not 1^'^ 

when  granted  to  public  administrator 1394 

administering  before  granting,  &c 1523 

application  for,  what  to  be  shown 1381 

how  and  by  whom  contested 1383 

revoked,  action  continued  against  him  or 

his  successor 1614 

revoked  for  failure  to  give  new  bond,  new 

security  or  to  indemnify 1620 

revoked,  successor  appomted 1521 

revocation  of,  or  testamentary,  by  subse- 
quent wiU 2170,2)71 

administrators,  &c.,  oath 1387 

to  give  bond,  form,  &c 1388 

persons  disqualified  as 13*' 

having  prior  right,  disqualified  or  absent, 
to  have  six  months  after  disquaUfication 

removed,  &c 1^''' 

advancements  accoimted  for 148; 

schedules  to  be  rendered 148< 

refusal  to  account 14«i 

appeals  to  superior  court,  what  done 146 

clerk  to  file  papers l-*^ 

assets,  executors,  &c.,  may  bring  action  to 
recover,  and  for  possession  of  real  prop- 
erty, and  for  any  injurj-  to 160 


556 


INDEX  TO  VOLUME  I. 


Section 
Sxeoators  and  administrators— C!ontiaueil. 
trust  estates  in   personalty,  deemed  per- 
sonal   1403 

proceeds  ot  sale  of  real  property  to  pay 

debts,  personal 1*104 

real,  what 1405 

distinction  between  legal  and   equitable, 

abolished 1406 

crops  ungathered  at  decease,  personal 140T 

new,  to  be  inventoried 1398 

account,  report,  &c.,  evidence  of,  when  —  1472 
subsequent,  coming  to  hand,  proceedings 

on 1473 

bidding  in  property  for  estate,  by  executors, 

&c 1505 

bonds  of  collector l-^ 

pubUc  administrator 1390 

enlarged  and  renewed,  when  1391 

of  public  administrator,  who  resigns,    or 

whose  term  expires 1395 

remedy  on 1510 

prosecuted  on  revocation  of  letters 1517 

new,  given  by  executors,  &c.,  when 1518 

surety  on,  how  relieved 1519 

bonds  and  other  obligations  in  which  an- 
cestor has  bound  his  heirs,  how  put  in 

suit 1404 

chapter  thirty-three,  applicable  to  what  — 

1433,  1434,  1476 
child,  after  born,   share   ot  land,  how  al- 
lotted    1536,  1538 

share  of  personalty,  how  allotted 1537 

when  deemed  legatee  or  devisee 1 540 

decree  for  contribution 1539 

claims  against  intestate  advertised  for.  1421,  1422 

affidavit  required  upon  presentation 1425 

notice  to  exhibit,  may  be  served  person- 
ally effect 1424 

referred,  when,  effect 1426 

Dot  presented  in  twelve  months  after  gen- 
eral notice,  effect  of  failure 1428 

clerk  of  the  superior  court  has  jurisdiction 

over  wills,  executors,  &c.,  when 1374 

first  acquiring  jurisdiction,  has  exclusive..  1375 
liable  on  bond  for  money  paid  into  court. .  1527 

collection,  letters  of,  when  to  issue 1383 

collector,  authority 1385 

ceases  when 1386 

bond  and  qualifications 1384 

delivers  all  property,  c£o.,  to  regularly  ap- 
pointed personal  representative 1386 

oath 1387 

sells  personal  property,  when 1409 

commissions  allowed  executors,  &c 1534 

contested  administration,  by  whom  and  what 

done 1382 

contribution  among  legatees  and  devisees. . .  1534 

specific  devisee,  when  entitled 1535 

costs  against  executors,  &c.,  when  allowed 

1429,  1459 
creditors,  proceedings  for  account,   ruins, 

&o 1+18, 1M9 


Sectioji 
Executors  and  administrators— Continued. 

summons,  when  and  where  returnable 1450 

clerk  advertises  on  issuing  summons 1461 

advertisement  where  published,  and  how 

long IISS 

debts,  evidence  of.  where  filed 14M 

notice  served  on  agent  of;  agent  how  ap- 
pointed    1453 

representative  to  file  list  of  demands  made 

on  him  with  clerk 1455 

clerk  delivers  hst  of,  filed  with  him  to  per- 
sonal representative 1456 

representative  admits  or  denies  demands 

within  five  days 1457 

proceedings  to  be  had 1457,  14.58 

issues  jomed,  how  disposed  of 1458 

costs,  by  whom  paid 1459 

representative  failing  to  appear,  clerk,  &c., 

may  give  further  time 1460 

clerk  to  state  account 14C1 

clerk  to  make  report ;  exceptions  filed 1462 

appeal 1464 

time  of  notice  enlarged  by  clerk  or  judge..  1463 

papers  filed  on  appeal 1465 

creditors  in  prior  classes  not  affected  by 

appeal,  may  docket  judgments 1466 

damages  for  act  causing  death, -measure  of..  1499 

recovery,  how  applied 1500 

debts,  order  of  payment 1416 

rate  of 1417 

preference  not  allowed 1418 

not  due,  paid  with  a  rebate 1419 

due  executor,  &C.,  how  retained 1420 

advertised  for,  how 1421,  1422 

how  proved 142S 

notice  to  exhibit,  may  be  personally  served, 

effect  ot 1424 

claim  presented,  rejected  and  not  referred, 

suit  must  be  brought  in  six  months 1427 

not  presented  within  twelve  months  after 
general    notice,  payments    theretofore 

made,  valid 1428 

priority  in  payment  observed 15^J1 

sale  of  evidences  of 1412,  1435 

equal  or  prior  in  dignity,  how  set  up  in  de- 
fence   1532 

paid,  estimated  unpaid  in  suits  against  ex- 
ecutors, &c.,  when 1533 

debtor  named  as  executor,  debt  not  dis- 
charged    1431 

deeds  made  by  executor,  &c.,  when 1492 

devastavit  by  executor,  &c.,  of  executor 1498 

payments  made  by,  when  estate  was  deem- 
ed solvent,  rendered  insolvent  by  war, 

valid 1498 

payments  made  prior  to  1st  July,  1809,  not.  1431 

devisee,  conveyance  by,  when  void 1442 

distribution  of  intestate's  estate  among  next 

ot  kin 1478, 14*3-1487 

execution  agaii/st  personal   representative, 

form  and  eftect 1471,  LVM 

issued  for  rateable  part,  when Ii09 


INDEX  TO  VOLUME  I. 


857 


Section 
Executors  and  administrators— Continued- 
issued  on  judgment  by  succeeding  execu- 
tor, &c l''>13 

executor,  &o.,  absent,  served  by  publication.  1623 

age  of "137 

competent  witness  to  wills 214C 

required  to  give  bond 1388,  1515 

de  son  tort,  who  chargeable  as l-l^- 

who  disqualified  to  serve  as  2102 

under  disqualifications   o£   age,    absence, 
&c.,  allowed  six  months  after  reaching 
full  age,  or  return,  to  take  out  letters —  2105 
of  deceased  guardian  to  pay  to  clerk  money 

belonging  to  ward 1022 

oaths  to  be  taken  by 2169 

renunciation  of,  how,  when,  &c 2103,  21C4 

may  invest  funds  in  U.  S.  bonds 1594 

and  in  certain  bonds  of  the  state 3590 

can  exchange  old  for  new  state  bonds. 3580,  8590 
duties  of,  &o.,  in  assigning  year's  support 

2120,  2122 
stun  allowed  widow  as  year's  support  to  be 
credited  10  same,  unless  impeached  for 

fraud  or  gross  negligence 8130 

heir,  conveyance  by,  when  void 1442 

jointly  Uable  for  debts  to  value  of  prop- 
erty    1528,  1529 

recovery,  how  apportioned 1530 

husband  administers  on  wife's  estate,  when, 

effect I'i'S 

dying  after  wife,  but  before  administer- 
ing,  his   personal    representative  takes 

property I'*™ 

right  to  administer  on  wife's  estate,  how 

lost 1480,1482 

inventory,  return  of 1336 

compelled 1397 

issues  of  fact  or  law  arising  on  contested  ad- 
ministration,   transferred     to    superior 

court 1382 

in  proceedings  by  creditors  against  execu- 
tors, &c.,  to  account,  how  disposed  of.. . .  1458 
in  proceedings    to    make  real  estate  as- 
sets   1440,1441 

joint  tenancy,  executors,  &c.,  hold  in 1602 

judgment,  on  taking  account,  where  docket- 
ed   1«6 

assets  sufBcient  to  pay  one  or  more  classes, 

what l-*"" 

insuffloient 1408 

every,    against   personal     representative, 

what  to  declare 1409 

none  other,  fixes  lum  with  assets 1470 

lien  of,  when  and  on  what 1471 

in  favor  of  administrator,  in  case  of  fraud- 
ulent conveyance  of  real  estate,  when 

land  cannot  be  sold 1447 

lands  devised  to  be  sold,  who  to  sell 1493 

legacies  and  distributive  shares  recoverable 

by  special  proceedings IBIO 

by  action  at  term 1511 

payment  of,  ordered  by  judge 1512 


Section 
Executors  and  administrators— Continued. 

share  of  absentee  may  be  paid  into  court..  1528 
letters  of  administration  or  testamentary, 

how  issued  and  tested 2172 

limitation   on   bond   of   executor,  &c.,  six 

years 154 

against  sureties  on  bond  of  executor,  three 

years 155 

creditor,  against  personal  or  real  represen- 
tative, seven  years 153 

action  by  creditor  on  whom  personal  notice 
has  been  served,  one  year  after  service  of 

such  notice 155 

claim  presented,  disputed  and  not  referred, 
within  six  months  after  notice  of  rejec- 
tion   1427 

money  belonging  to  legatees,  &c.,  after 
twelve  months  from  quaUflcation ;  exe- 
cutor, &c. ,  to  pay  into  clerk's  office 1543 

clerk  receives  and  receipts  for  the  same...  1544 
notice,  time  of,  may  be  enlarged  by  clerk  or 

judge 1403 

six  months,  given  to  person  having  prior 

right  to  administer 1379 

personal  property,  power  to  sell 1408,  1409 

powers  of  sale  under  wills  not  affected  by 

chapter  thirty -three 1415 

probates,  &c.,  before  July,  1809,  proceedings 

in 1477 

promises  to  charge  executor,  &c.,  person- 
ally, to  be  in  writing 1506,  1552 

public  administrator,  by  whom  appointed. . .  1389 

when  to  have  letters 1394 

bond 1390-1392,  1395 

oath 1393 

power  and  duties 1395 

real  property  sold  to  pay  debts,  proceeds  re- 
maining after  payment  of  debts  to  go  as 

land 1405 

descended,    charged  with    debts,   before 

land  devised  1430 

bid  in  by  executor,  &c.,  when 1505 

sold  to  pay  debts,  when  and  how 1436 

contents  of  petition 1437 

parties  to 1438 

infants,  how  made  parties 1439 

issues    of     title  joined,    how    proceeded 

with 1440,  1441 

power  of  clerk,  to  order  sale 1443 

order,  what  to  contain 1444 

writ  of  possession,  when  to  issue 1444 

notice  of  sale,  what  sufdcient 1445 

what  real  estate  subject  to 1446 

judgment  in  case  of  fraudulent  conveyance  1447 
final  orders  not  made  before  present  con- 
stitution, transferred  to  superior  court. . .  1542 
real  property  under  will,  how  and  by  whom 

sold 1508 

record  of,  to  be  kept  by  clerk  of  superior 

court (2),  (4),  (5)  112 

renunciation  of  those  having  prior  right  to 
od  minister '^TU 


INDEX  TO  VOLUME  I. 


Section 
Executors  and  administrators— Continued. 

renunciation,  when 13S0 

report,  evidence  of  assets  on  day  to  which  it 

relates 1472 

retainer,  not  allowed 14;;0 

revocation  of  letters  for  failure  to  give  new 

bond,  &c 1 520 

sales  of  personal  property,  how  made. .  1408,  1410 

for  cash,  when  and  how  obtained 141 1 

of  evidences  of  debt  after  one  year —  1412, 1435 

proceeds  of,  how  secured 1413 

hours  of 1414 

of  real  property 1436-1447 

surety  on  bond  in  danger  of  loss,  how  re- 
lieved    1519 

sin^jlus,  paid  over  at  end  of  two  years 1488 

sums  to  be  reserved  on  payment 1489 

taxes,  liable  for,  when 3698 

university,  property  paid  to,  when 1504 

vouchers,  presumptive  evidence  of  disburse- 
ment, for  all  acting  in  a  fiduciary  charac- 
ter   1401 

year's  allowance 2116-3135 

See  Widow. 
widow  can  use  stock,  crop,  &c.,  on  hand  un- 
til allowance  assigned 1522 

wife's  right  to  administer  on  husband's  es- 
tate, how  lost 1480,  1481 

Exemptions, 

arrest 291,1367,  1735 

jury  service 1723,  2869.  2580,  3281 

roads,  working  on 2018,  2059,  2869 

from  execution 501-5»1,  1840,  2104,  2105 

See  Execution^  &c. 
Fact, 

issues  of 891-393 

how  and  where  tried 394,    898 

before  clerk,  transferred  to  next  term 116 

judge  does  not  express  an  opinion  as  to 413 

questions  of,  how  tried 135 

F9lse  imprisonment, 

action  for,  limitation 156 

False  pretense 1025-1027 

False  return, 

byofHcer 1112 

penalty 2079 

to  writ  of  habeas  corpus 1653 

Family, 

defined 2110 

Fare, 

general  assembly  may  reduce,  on  railroads. .  1961 
Faro, 

banks  and  gaming  tables 1044-1046,  1049,  1050 

Father, 

Sec  Child,  Parents. 
Fee, 
conveyances  and  devises,  unless  otherwise 

expressed,  construed  to  be  in 1280,  2180 

estate  tail  converted  Into 1325 

liomeste?,rt,  construed  by  supreme  court  not  to 
be  in (4)   BOl 


Fees,  Suction 

action  for,  limitation 155 

clerk  supreme  court,  copying  record 960 

recording  articles,  of  association,  &c 680 

commissioners,  sheriff   and   justice   of  the 
peace,  in  proceedings  by  widow  for  year's 

allowance  2135 

to  make  partition  1916.1922 

county  treasurer 770 

jurors,  before  coroner 659,    660 

persons  appointed  to  sell  land 1910 

receivers (4)    379 

referee 638 

sheriff,  carrying  convicts  to  penitentiary  —  2069 
See  generally.  Vol.  II,  Feu. 
Feigned  Issues, 

abolished 185 

Feme  sole, 
liability  of,  for  antenuptial  obligations,  not 

altered  by  marriage 1888 

Fences,  &c. ,  injuries  to 1062 

See  Vol.  n. 
Ferries, 

how  established  and  discontinued 2014,  8088 

appeal  to  superior  court 2089 

tolls  regulated   by  county    commissioners; 

penalty  on  owner  not  abiding  by  rates. . .  2W6 

owner  of,  may  build  toll  bridge  instead 2017 

bonds  taken  by  county  commissioners,  per- 
sons injiu-ed  may  recover  damages 2048 

penalty  for  keeping  unlawfully,  exception 

as  to  mail  carriers 8049 

Finance  Committee, 

appointment,  duties,  &c 768-768 

compensation  of 768 

oath  of  members  of 788 

officers  failing  to  settle  after  notice  by,  &c. .    760 

send  for  persons  and  papers 759 

statement  published  by 761 

Fines, 

book  of,  kept  by  clerks 96,    725 

forfeitures  and  penalties,  &c.,  paid  to  county 

treasurer,  &c 96,7-34,    786 

paid    by   county   treasurer    to    common 

schools 98 

quarterly  statement  of,  filed  by  treasurer 

with  clerk 727 

Float  bridge, 

penalty  for  fastening  vessel  to 2050 

Foot  ways, 

when  and  by  whom  made 2029 

Forcible  entry, 

and  detainer 1028 

Forgery,  ;, 

crimes  by 1039-1(M0,  2965,  8017 

Former  Judgment, 
effect  of  plea  in  penal  suit,  plaintiff  may 

reply, what 938 

evidence  of 844 

Forms, 

In  justice's  court 909 

of  oaths 8818-8816 

of  proceeding  before  justice  of  the  peace  tor 


INDEX  TO  VOLUME  I. 


859 


Forms— Continued.  Section 

Bummary  ejectment  of  tenants  holding 

over 1^^ 

to  lay  off  exempted  property 524 

Fornication, 

and  adultery 1041,  1845 

Franchise, 

claimed  by  several,  one  action  brought 614 

of  corporation,  how  sold 671-674 

usurpation  of,  penalty 615 

Fraud, 

action  for,  limitation (9)    155 

ofattomeys 23 

Fraudulent  conveyances, 

deeds  to  defraud  creditors 1545 

voluntary  deeds  not,  as  to  creditors,  merely 
because  of  indebtedness  of  donor ;  indebt- 
edness only  evidence  of,  to  be   left  to 


]ury. 


1547 


deeds,  &c.,  made  to  defraud  purchasers  tor 

value,  without  notice 1546 

See  Void  Contracts  and  Conveyances. 

Free-trader 1837-1832 

Freiglit, 

See  Railroads. 
general  assembly  may  reduce,  on  railroads..  1961 

penalty  for  refusal 1964 

list  of  charges  of,  to  be  kept  posted,  not  to  be 

increased  without  notice,  penalty 1965 

discrimination  in,  unlawful,  penalty 1966 

imshipped  for  five  days,  penalty 1967 

pooling  and  rebates  forbidden 1968 

attorney  general  institutes  actions,  when —  1969 
Fugitives  from  justice, 
apprehension  of,  governor  may  employ  agent 

or  offer  reward 1169, 1170 

arrested  by  what  magistrates 1165 

record  of , kept,  and  transmitted  to  governor  1166 

duty  of  governor 1167 

outlawed,  how 1131 

sheriffs,  &c.,  surrender,  on  order  of  governor  1168 
Funds, 
pubUc,  annual  reports  of.  made  by  county 

officers  to  county  commissioners 728 

Gambling 1042-1052 

money  bet,  liable  to  seizure 1051 

Gaming  Tables, 

destroyed,  Sc 1052 

Garnishee, 
confessing  articles  in  his  possession,  articles 

to  be  valued ;  judgment  for  the  same  —    367 
declaring   debt  due.  or  property  deliverable 

at  a  future  da  y,  what  done 368 

tailing  to  appear,  proceedings  against 365 

judgment  against 364, 368,  370 

stating  articles  deposited  with  him,  exoner- 
ated by  delivery 367 

who,  and  how  summoned 304 

Gates, 

across  cartways  or  highways 2057,  2058 

General  Assenably, 

elects  justices  of  the  peace 819,    820 

Bee  Vol,  11,  Qentral  4«««i»6Iy, 


Ginseng,  Section 

cannot  dig,  when 1053 

Governor, 

appoints  a  special  term,  when 914 

notifies  county  commissioners  of  the  same.    915 

judge  to  hold  special  term 913 

justices  of  the  peace  for  new  townships, 

when 819 

duties  and  powers  of,  relating  to  fugitives, 

1167-1170 
has  affairs  of  railroads  in  which  state   has 
interest  investigated  by  board  of  internal 

improvement 1719 

See  Vol.  II,  Governor 
Grace, 

days  of.  on  bills *3 

Grand  Jury, 

drawn  how 404 

foreman  administers  oaths  and  marks   on 

bills  the  names  of  witnesses  examined. ..  1742 
furnished  by  clerk  with  list  of  guardians,  &c. ; 
to  present   names   of  orphans  without 
guardians,  and  to  inquire  into  actions, 
&c.,  of  guardians  appointed  by  clerk —  1609 

jails  visited  by 785 

not  drawn  for  special  term 921 

witnesses  before,  when  paid 743 

Grantee, 

of  real  property  may  sue  in  own  name 177 

of  reversions,  rights  against  holders  of  par- 
ticular estates 1331,  1765 

Growing  Crops, 

larceny,  &c.,  of 1069 

Guardian  and  ward, 
ad  litem,  how,  when  and  by  whom  appoint- 


ed. 


181 

all  guardians  subject  to  chapter  thirty-five. .  1616 
appointed  by  clerks  of  superior  court,  who 

take  cognizance  of  orphans,  &c 1566 

accounts  of,  to  be  made  annually 1580,  1617 

failure,  clerk  orders  account,  attachment 

issues,  and  removal  from  office 1618 

final  account  compelled,  when 1619 

account  returned  within  three  months 1677 

retm-n  compelled,  when  and  how 1578 

return  of  new  assets 1579 

bond,  recorded  by  clerk,  who  may  sue  on  the 

same 1575 

given ,  increased  on  sale  of  property 1674 

one  bond,  where  property  belongs  to  sev- 
eral   1576 

renewed  every  three  years 1581 

failure,  removal  by  clerk,  after  citation. . .  1582 

action  on,  by  solicitor 1584 

receiver  appointed  in  such  action 1.585 

compensation  of  solicitor 1586 

clerk  taking  insufficient  security  on  bond, 

liable  on  his  official  bond  for  loss,  S:c..  1614 

and  for  other  defaults 1615 

compensation  allowed  1613 

disbursements  and  expenses  allowed 1613 

deed,  guardian  by,  father  may  appoint,  or 

wUl 1562 


SCO 


INDEX  TO  VOLUME  I. 


Guardian  and  ward— Continued.  Section 

mother  may,  if  father  dead   1502 

effect  of  such  appointment 15(53 

powers  and  liabilities  of 1504 

estate  of  orplian  without  guardian,  how  se- 
cured   IGIO 

of  estate 1571 

appointed  when  father  alive;  but  father 

has  custody  of  person 1572 

talces  charge  of  estate,  and  brings  actions. .  1588 

estate  without,  managed  by  clerk 1676 

grand  jury  presents  names  of  orphans  with- 
out   guardians,  and  inquires  names  of, 

guardians 1609 

foreign  guardian  may  remove  ward's  estate, 

how 1598 

petition  to  show  what 1599 

who  made  defendants 1600 

petition  proceeded  with,  as  in  special  pro- 
ceedings     1601 

infants,  &c.,  sue  by  guardian  ornextfriend..    180 
defend  by  guardian  or  guardian  ad  litem. . .    181 

investment  in  U.  S.  bonds,  &c 1594,  3596 

leases,  land,  when 1591 

sells  timber,  when 1596 

letters  of  guardianship  issued  by  clerli 1621 

liable  for  debts,  when 1593 

for  land  forfeited  for  taxes,  when 1595 

for  unpaid  taxes 3691,  3698 

lunatics,  idiots,  <£:c.,  guardian  for,  appointed 

by  clerli 1670 

superintendent  of  asylum,  certifies  to  their 

lunacy  or  idiocy ...  1673 

proceedings  on  application  for  guardian- 
ship of 1620 

to  sell  land,  &c 1950 

moneys  belonging  to  ward,  paid  into  court 
by  executor  or  administrator  of  guardian 

deceased,  effect  of  payment 1622 

natural  guardian,  mother  is,  it  father  dead..  1565 

notes  assigned  to  ward  on  settlement 1592 

parents  divorced,  custody  of  children,  set- 
tled by  court 1570 

plate  belonging  to  ward,  to  be  liept 1697 

proceedings    against   defaulting  guardians, 

fine  and  costs  by  whom  paid 1611 

to    condemn  land,  &c.,  guardian   ser\'ed 

withprocess 1944 

public  guardian  appointed  by  whom 1656 

bond  of 1.5.57 

enlarged 1558 

renewed  every  two  years 1559 

oath 1500 

applies  for  letters  when;  revoked  when; 
powers  and  duties  as  other  guardians  —  I56I 
railroad  purposes,  proceedings  to  condemn 
land  of  ward  for,  guardian  to  be  served 

with  process 19-14 

guardians  of  infants,  &c.,  authorized  by 
petition  in  superior  court  to  sell  lands  of 

ward  for  railroad  purposes 1956 

receWer  having  property,  guardian  obtains 
it,  how  1587 


Guardian  and  ward— Continued.  Sectiok 

resignation  of  guardian 160*: 

sales  of  perishable   property   hy  order  of 

clerk 1589 

sales  and  rentings,  how  made 1590 

estates  of  ward,  how  and  when  sold;  peti- 
tion and  contents 1602 

property  substituted  for  that  sold,  remams 

of  same  character  as  that  sold 1603 

ward  indebted,  property,  how  sold;   soles 

of  real  estate  confirmed  by  judge 1604 

proceeds  are  assets  in  guardian's  hands  to 

pay  creditors 1605 

surety  given,  before  guardian  takes  property  1573 

in  danger  of  loss,  how  relieved 1606 

interlocutory  order  pending  controversy  . .  1607 
surplus  profits  lent  out;   notes  draw  com- 
pound Interest 1592 

trust,  guardian  abusing,  removed  by  court, 

when 1583 

tutor  of  person  and  guardian  of  estate  ap- 
pointed    1567 

in  such  cases,  yearly  sums  allowed  for 

support  and  education 1668 

commissions  and  disbursements  allowed  . .  1669 
Habeas  Corpus, 

application,  mode  of  making 1626 

what  to  contain 1027 

form  and  sufficiency  of    writ,    defect   not 

material 1629,  1630 

when  writ  must  be  cranted 1628 

penalty  for  refusal  to  grant 1631 

when  writ  may  issue  without  application  —  1632 

return  to  writ  and  contents 1633 

no  order  made,  without  notice  to  interested 

parties 1634 

writ  of.  ad  testificandum 1663 

may  be  issued  by  justices  of   the   peace, 
clerks  of  the  superior  court  and  judges 

of  the  supreme  or  superior  courts 1664 

application  for,  what  to  contain 1665 

how  and  by  whom  served 1606 

fees  and  bond  on  service 1667 

duty  of  ofTicers  receiving 1668 

prisoner  after  testifying,  to  be  remanded..  1669 
judge  need  not  make  order  for  discharge 

until  after  notice  to  solicitor  of  district..  1635 
production  of  the  body,  when  required  in 

cases  of 1680 

officer  failing  to  obey  writ  of,  may  be  at- 
tached    1687 

court,  with  attachment,  may  issue  precept  to 
coroner  or  other  officer  to  bring  up  party 
detained ;  neglect  to  make  due  return —  1640 
penalty  on  judge  refusing  to  grant  the  pre- 
cept   'Ml 

costs,  how  awarded 1660 

contest  on  writ  of,  between  husband  and  wife 
over  custody  of  children,  court  or  judge 
may  award  to  either;  appeal  to  supreme 

court  aUowed 1011,  1063 

when  and  by  whom,  application  for,  made, 

1623,  WSt 


INDEX  TO  VOLUME  I. 


S61 


Habeas  corpus— Continued.  Section 

when  denied ^^~* 

no  person  discharged,  shall  be  again  arrested  . 

tor  same  cause,  under  penalty  ot  $500,  to  | 

be  paid  party  aggrieved ICSl 

penalty  on  officer  faUing  to  obey  order  of  dis- 
charge of  person  detained,  how  enforced  1040 
but  officers  not  liable  for  obeying  order. . .  ItiSO 
for  neglecting  to  obey  the  writ  or  for  refus- 
ing copy  of  process l^sa 

on  judge  refusing  to  grant  attachment. ...    1C38 

conniving  at  insufficient  return 1642 

on  sheriff,  failing  to  return  wi-it 1039 

.  person  detained,  discharged,  when 937,  1645 

remanded,  when 937,  1646 

bailed  or  remanded,  when 1647 

party  to  writ  entitled  to  subpoenas  for  wit- 
nesses     ^^^^ 

persons  committed  for  treason  or  felony  to 

be  speedil/  tried  or  discharged 1658 

concealing  person  entitled  to  writ  guilty  of 
misdemeanor,  aidei's  and  abettors,  also, 

1654,  1655 
maldag  false  returns   to  writ  a  misde- 
meanor   l'^^3 

prisoner,  when  remanded 937,  1646 

proceedings  before  court  or  judge  in  case  of 

sickness  of  prisoner 1648 

before  court  or  judge  on  return  of  writ. . . .  1644 
sheriff,  &c.,  may  call  to  his  aid  the  power  of 

thecounty ^'^f 

writs  returnable,  when 1656 

how  and  by  whom  sei-ved 1657 

Half  blood, 

inheritance  of  C**)  ^281 

Hanging, 

assistants  admitted  to 1*44 

private,  unless  otherwise  provided  by  county 

commissioners 1~'*3 

Heir, 

See  Descents 1^1 

commences  new  action  within  one  year  after 

non-suit,  &c •    166 

conveyances  by  ,within  two  years  after  quali- 
fication of  administrator,  &c.,  void 1443 

dower,  when  assigned  by 2110 

may  compel  contribution ■  •  1534,  1535 

of  living  person,  limitation  to,  is  to  his  chil- 

dren  1329 

parent,  when (0)1381 

widow  is,  when (8)  1-^1 

word   "heirs"    unnecessary    in  wills    and 

deeds 1280,2180 

jointly  liable  for  debts  of  ancestor,  &c.,  to 

value  of  property IS^"^!  1529 

recovery,  how  apportioned 1530 

Highway, 

law  concerning 2014,  2035,  3038-304S 

See  Hoads. 
Holograph, 

,vms  2136,(3)2148 

Homestead 601-52' 

See  Execution— property  exempt  from  sale. 


Section 
Horse  Stealing 1066,1067 


1062 


Houses, 

broken  open  to  prevent  felonies,  when.  .1127,  1128 

in  elflim  and  deUvery,  when ^ 

court,  repaired  by  county  commissioners. 

injuries  to _ 

of  correction,  county,  how  provided, 

(17)  707.  786-801 

=""""t,,  1058,1059 

byflrelight 

on  Sunday 

Husband, 

abandonment  of  family »'"  ^"' 

aUenation  ot,   passes  his  own  interest  only, 

and  cannot  affect  wife's  right  of  dower. .  2106 
competent  witness  for  wife  in  criminal  pro- 
contracts  with  wit e,what  vaUd,  what  not,1835, 1838 
consequences  of,  separating  from  wife  and 

living  in  adultery 1^^ 

deeds  by,  and  wife,  how  executed,  proved 

and  registered 1256 

dower  and  land  in  lieu  of,  not  liable  to  sale 

for  debts  of 3104,2105 

interest  ot,  in  real  estate  of  wife,  exempt 

from  sale  under  execution 1840 

lite  ot,  may  be  insured  by  wife  for  her  use  . .  1841 
not  liable  for  debts,  contracts  or  torts  of  wife 

before  marriage  1^22 

liable  for  torts,  &c.,  committed  by  wife ....  1833 

for  taxes  on  wife's  land,  when 3698 

or  wife,  may  testify  in  case  ot  divorce,  as  to 

pregnancy 1 

tenant  by  the  curtesy 1*38, 1840 

using  income  of  wife,  not  Uable  to  account 
longer  than  one  year  before  suit  by,  or 

death  of  wife..: , 1^'' 

wife's  estate,  administers  on,  when 1479 

right,  how  lost 1480-1482,1845 

witnesses,  wife  and,  are,  exceptions:  do  not 
disclose  confidential  communications. 588, 1353 
Hyde  County, 
sherifE,  &c.,  can  serve  process  on  shipboard 

between  Ocracoke  and  Portsmouth 2078 

Idiots, 
certificate  ot  superintendent  of  insane  asy- 
lum evidence  of  idiocy  to  enable  guardian 

to  be  appointed 1'^'^^ 

defend  by  guardian  ad  litem ISl 

guardian  for,  appointed  by  clerk 1070 

order  for  sale  or  rent  of  land  of,  how  ob- 
tained  ...1074,1675 

netition  to  have  persons  declared;   inquisi- 

^     ,.  1670 

tion 

proceedings  to  condemn  land  of,  for  raU- 
roads,  guardian  to  be  served  with  pro- 

1941 

cess ■■■■ 

sue  by  guardian  or  next  friend i"" 

See  Guaidiati  and  Ward. 
Illegitimate  child, 

legitimated  by  father ^ 

inheritance  ot (9),  (10)  1281 


8'?3 


INDEX  TO  VOLUME  I. 


nie^timate  child— Continued.  Sectio 

next  of  kin  to  cacli  other 148T 

next  of  kin  lo  mother,  when 148G 

Improvements^ 

claim  for,  by  defendant 473-487 

See  Executions. 
Incest, 

what  and  how  punished lOCO,  1061 

Indenture, 

apprentices  boimd  by 9 

remedy  on jO 

of  apprentices ,  revoked  by  clerk,  when 16 

Index, 
alphabetical,  of  judgments  kept  by  clerk. .  .83,  433 

of  records 113 

Indian, 

cannot  marry  white  person 1810 

contracts  with,  to  be  in  writing 1553 

See  Vol.  n,  Cherokee  Lands. 
Indictment, 
deatlt  in  another  county  by  assault,  found 

where 1196,  1197 

defects  of,  what  kind  do  not  vitiate 1189 

finding  and   sentence   of  justice   of  peace 

pleaded  in  bar  of 903 

forgery,  statement  and  proof 1191 

formal  objections,  &c.,  not  to  quash 1:83 

fraud,  statement  and  proof 1191 

larceny  of  money,  what  sufficient  to  state. . .  1190 
larceny  and  receiving    goods,  charged  in 

same 1191 

libel,  defendant  may  give  truth  of,  in  evidence  1 195 
magistrate  not  liable  on,  for  improperly  in- 
dorsing warrant 1137 

misdemeanors,  commenced  in  two  years,  ex- 
ceptions    1177 

no  person  arrested  on  presentment  or  tried 

except  on : II75 

ownership  of  property  held  in  common,  how 

Btatedin 1188 

perjury  and   subornation  of,  what  to  set 

forth 1185,  1186 

second  offence,  how  first  conviction  stated..  1187 
substance  only  of  proceedings  set  forth  in..  1184 
Indorsers, 

of  negotiable  paper,  liable  as  sureties BO 

Inebriates, 

who  deemed 1671 

defend  by  guardian  ad  litem 181 

guardian  of ,  appointed  by  clerk 1670 

order  for  sale  or  rent  of  lands  of,  how  ob- 
tained   1674,  1676 

petition  to  have  persons  declared;  inquisition  1670 

property  restored  upon  reformation 1673 

sue  by  guardian  or  next  friend 180 

See  Ouardia^i  and  Ward. 
Infants, 

apprenticed H 

costs  against,  how  paid 685 

defend  by  guardian  ad  litem 181 

judgment  against,  validated 387 

petitioning,   judgment  to  be  approved   by 
judge 286 


Infants- Cuntinucd.  Sbctiok 

privileges   of,    in  corporations    relating    to 

swamplands 1320 

sue  by  guardian  or  next  friend 180 

trustees,  how  to  convey  as 1265 

unborn,  may  take  by  deed  or  other  writing. .  1328 

may  inherit,  when (H)  1281 

Inferior  Court, 

adjournment  of,  by  sheriff,  when 806 

appeals  to  superior  court  for  errors  of  law, 

how  conducted 809 

attorney  of,  how  elected,  duties 814 

bond  of  clerk  of,  taken  by  county  commis- 
sioners     812 

business  of,  not   finished    in  one   day,  ad- 

joujmed  from  day  to  day. 805 

cases  pending  in,  untried,  where  transferred.  1212 

clerk  of,  to  give  bond 812 

duties  of 818 

to  issue  all  process  for,  sheriff  to  serve 813 

justices  of  the  peace  elect,  failure;  who  to 

a«t 812 

cruninals,  speedy  trial  of 1341 

discontinued,  records,  <S:c.,  transferred  to  su- 
perior court 804 

ssues  of  fact  may  be  tried  by 810 

urisdiction  of  808 

urorsof,  how  provided 811 

ury  trial,  how  waived 810 

ustices  of  the  peace  may  establish 803 

powers  of 817 

practice,  pleadings,  &c. .  as  in  superior  court .    808 
presiding  justice  elected  by  the  court,  com- 
pensation of 81S 

process  not  discontinued  by  failure  to  hold 

term  of,  &.c 807 

seal  of 817 

terms  of 804 

vacancies,  how  filled 816 

In  forma  pauperis, 

appeal  in 553 

suit 210,  212 

Information, 

action  upon,  by  attorney  general,  when 607 

Inheritance, 

rules  of  descent  in  cases  of -mgi 

Injunction, 

al  lowed  after  answer  only  upon  notice 840 

in  what  cases jsg 

answer  vei-ified,  effect  of  aflidavit 344 

application  to  modify  or  vacate,  how  made, 

344,  S4S 

copy  of  affidavit  served  with 8S9 

corporations  not  suspended  by,  unless  under- 
taking given 848 

damages,  how  ascertained 341,    843 

granted,  at  what  time 839 

by  whom 886 

issued  upon  affidavit 889 

order  to  show  cause,  restraint  meanwhile  ...    342 
provisional  remedy  by,  abolished ;  by  order 

substituted 834 

restraining  order  may  be  Issued  after  answer    840 


INDEX  TO  VOLUME  I. 


863 


Injunction-Continued.  Section 

not  to  issue  for  more  than  thirty  days;  j 

continues  until  vacated 34fi 

returnable  before  whom 336 

by  written  agreement,  before  whom 337 

stay  of,  not  counted  in  bar  of  action 167 

imdertaking  before  issuing  order 341 

without  notice,  modified  or  vacated  on  notice.    844 
Inspection,  ^ 

of  books,  papers,  &c.,  how  obtained  . .  .  .578,  13i^3 
effect  of  failure  to  produce  books,  &c.,  for  ..  1373 
InstructionSt 

judge  to  put  in  writing  when  requested 414 

prayers  for,  to  be  in  writing 415 

Insurrection  and  conspiracy, 

against  state 1100,1107 

Interest, 

on  bills,  bonds,  notes  and  accounts 44,      46 

on  bills  of  exchange,  drawn  or  indorsed  in 
state  and  protested,  from  time  of  pay- 
ment       4' 

computed  and  allowed^  how 629,    530 

rate  of 3835 

contracts  bearing 530 

judgment  by  defaidt,  clerk  to  compute 631 

on  securities  for  payment   or  delivery    of 

specific  articles ■*" 

Interlocutory  judgment, 

appeal  to  supreme  court,  how  prosecuted. . .    962 
Internal  improTements, 

board  of 1^88 

affairs  of  railroads.in  which  state  is  a  stock- 
holder. Investigated  by l'i'19 

administers  oaths 1^^^ 

appoints  proxies  for  state 1718 

compensation  of 1689 

dutlesot 1653 

In  making  contracts 1696 

funds  of,  deposited  m  banks 1694 

interest  of  state  in  railroads  controlled  by.  1691 

rules  and  by-laws  of 1690 

aessionsof 1689 

state  to  be  stockholder  in  companies  for,  to 

amount  of  stock  advanced 1697 

Interpleader, 

order  of,  when 1^^ 

Inventory, 

See  Executors  and  Adminiatratort. 
Islands, 

artificial,  penalty  for  erecting 986 

Issues, 
action   to  recover  land  debt,  submitted  to 

jury •  •    '■^^ 

arise  how 391,392,893 

kinds  of 391 

arising  on  contested   administration  trans- 
ferred to  court 1383 

criminal,  first  tried ''93 

of  fact,  arises  upon  what 393 

when  tried 490 

trial  by  jury  waived  in  inferior  court,  tried 

by  justices f'l" 

how  waived  in  superior  court 416 


267 


Issues-Continued.  Section 

before  clerk  transferred  to  next  term 116 

no  undertaking  required 252,  2o6 

feigned,  abolished,  substitute..  135 

of  law  arises  upon  what 39- 

how  tried ^ 

before  clerk,  appeal ^^ 

law  and  fact,  issue  of  law  tried  first 391 

of  law  and  fact  triable  at  term  next  after  ap- 
pearance   

made  up  how  and  by  whom 395 

in  proceedings  against  executors,  &c.,  to  ac- 
count, how  disposed  of  I'lSS 

bv  administrator  to  make  real  estate  as- 
sets  i«o.i«i 

nrollxity  of,  avoided,  framed  .concisely 396 

trial  of    3ffr,4^ 

postponed,  when  and  how 401, 402 

tried  by  whom 398,399 

'^'"1*'  ran 

grand  jury  to  visit,  at  each  court 785 

heated  by  furnaces,  &c "^ 

prisoners,  in  what  committed 1164,  1174 

provided  with  separate  apartments 783 

repaired  by  county  commissioners 'i^ 

sheriff  to  have  custody  of,  appoints  keeper. .  2085 
Joinder  of  causes  of  action, 

in  complaint 

Joint  contract, 
parties  not  summoned  in  action  on,  summon- 
ed after  judgment 2^ 

suit  how  brought  on 1°' 

Joint  and  several  debtors  and  partners, 

summons,  how  served,  &c —^ 

how  plaintiff  may  proceed ^22 

Joint  tenants, 

executors,  &c.,  to  hold  as 

procedure  for  sale  of  lands  of,  for  pubhc  pur- 
poses   

survivorship  of,  does  not  obtain,  exceptions.  1326 

absent,  court  when  and  how  adjourned »»> 

appeal  from  clerk,  decided  by,  when 255 

duty  of ,  on  appeal  from 41* 

exchange  of  courts ^1" 

facts,  not  to  express  an  opinion  upon ^  413 

fiUs  vacancy  in  office  of  clerk 76,  77 

instructions  to  be  put  in  writing 414 

judgments,  &c.,  signed  by  what 432 

law,  to  be  explained  by 413 

oath  of,  where  returned ^^ 

reference,  when  compulsorily  ordered  by....    421 
reviews  order  relating  to  infant  petitioners. .    288 

ridings,  notification  of ^^ 

rotations  of ^ 

signature  to  judgment,  &c.,  when  required..    288 
special  terms  of  superior  com-ts,  how  ap- 
pointed for ^13 

Judgment, 
against  executors,  &c.,  when  to  be  docket- 


1503 


1907 


ed. 


1466 
431 


J  action  for  recovery  of  pei-scnal  property 
penal,  how  discharged 931 


864 


INDEX  TO  VOLUME  I. 


Judg:meiit — Continued.  Section 

annual  damages  for  erection  of  mills  binding 

for  five  years  1860 

appealed  from,  how  secured 4iJ5 

appellate  court  may  render,  against  sureties 

on  appeal  bond 563 

in  attachment,  how  satisfied S70 

confession  of,  without  action 570,  571,  572 

confession  of,  for  debt  due,  or  to  become  due 

on  contingent  liability 570 

verified  statement  of  debt  signed  and  filed.    571 

execution  thereon,  how  enforced 673 

confession  of,  for  fine  and  costs,  not  to  dis- 
charge original  judgment 7-19 

in  controversy  without  action,  how  enforced 

find  appealed  from 568,  569 

conveyance  of  title,  when. 426 

copy  of,  evidence  when 428 

costs,  how  inserted  in 532 

when  plaintiff  bound  for 543 

when   and   how    sm*eties   of   prosecution 

bound  for 543 

damages,  rate  of 430 

by  default  final 385 

by  default  and  inquiry 386 

inquiry  when  and  how  executed 386 

on  demurrer,  answer  or  reply  when  frivo- 
lous       388 

deposit  in  heu  of  bail  applied  to  payment  of.    312 

destroyed,  how  perpetuated 60,  67,  71 

docketed,  when,  where,  how,  lien  of 435 

to  beardateof  first  day  of  term 43^5 

dormant,  leave  to  issue  execution  on 440 

draws  interest, interest  how  computed  and  en- 
tered  529-531 

enforced  and  appealed  from,  how 569 

for  erection  of  mills,  when  against  plaintiff, 

when  not 1862 

for  excess  over  defendant's  counterclaim.. (2;  385 

execution  to  enforce 441 

executors,  summons    served  on  one,  judg- 
ment may  be  against  all 1508 

for  failure  to  make  due  returns,  how  given. .    440 
in  favor  of  administrator  in  case  of  fraudu- 
lent conveyances  of  land,  &c 1447 

of  forfeiture  against  corporation GI7 

form  of,  in  action  for  purchase- money  of 

land 236 

against  garnishee 864 

good  until  reversed 936 

of  justice  of  the  peace,  limitation  seven  year*    153 

all  others,  ten  years 152 

how  and  when  docketed 380,  8:19 

how  removed  to  another  county 846 

on  what  a  lien  and  when 839 

kinds  of 384 

final ZSi 

interlocutory 884 

manner  of  entry 424 

of  j)!eading 262 

agaitiKt  married  women,  how  collected 424 

In  matters  of  accomit  against  executors  and 
administrators,  when  docketed 146G 


J  udgmeut— continued.  Sectigii 

for  money  rendered  by    clerk   of   superior 

court,  lien  of 85 

motion  for,  on  answer 249 

new  action  commenced  within  one  year  after 

reversal ,  &c 166 

nim,  against  clerk  when 445 

against  sheriff  or  other  officer  when 44*J 

non-residents,  time  for  enforcing,  against. . . .  162 
paid  by  party  before  execution,  clerk  to  do 

what 433 

parties  not   served  with   summons,    bound 


hou 


bound  by,  may  answer  or  defend 224 

in  partition,  when  and  how  impeached, 

1890, 1918. 1919 
against  personal  representative,  what  to  de- 
clare   1469 

fixes  with  assets  when  1470 

lien  when  and  on  what 1471 

proceedings   on,  when  issue  of  law  deter- 
mined     419 

to  condemn  land  for  railroad  companies..  1946 

for  year's  support 2131,  2134 

real  property,  in  action  for,  defendant  fail- 
ing to  give  bond 890 

regarded  as  a  deed  when,  and  registered.  .427,  429 

relief  to  be  granted  in 425 

roll,   in   action    against    corporation   filed 

where 620 

roll,  how  made  up 434 

signed  by  what  judge 432 

in  special  proceedings,  when  judge  to  sign..    288 

for  sum  admitted  due 382 

in  supreme  court,  how  a  lien 436 

transcript  of 436 

final,  how  certified 967 

rendered  on  review  of  record 957 

trial  by  court,  how  given 417 

for  usm-pation  of  office 610,  611.615 

in  waste 624,  629 

Jurisdiction, 

clerks  of  superior  court 103,  251 

concurrent,  of  inferior  and  superior  courts. .  1241 

inferior  court 808 

justices  of  the  peace  in  bastardy 898 

in  civil  actions  on  contracts 884 

in  civil  actions  on  torts 887 

in  criminal  actions 892,  896,  897 

in  peace  warrants 89S 

superior  courts,  original 922 

appellate 928 

at  special  terms 916 

concurrent  with  justices  of  the  peace 887 

supreme  court 945,  947, 948 

Jurors, 
accomodation     of,    provided    by    order    of 

court 1786 

challenges,  peremptory 405,  406,  1199, 1200 

for  disqualification 1722,  1?28,  l'/83 

competency  of,  decided  by  court 405, 1199 

coroner's,  allowed  compensation 659,  600 

of  court,  inferior,  how  provided 81 1 


/u 


INDEX  TO  VOLUME  I. 


865 


Jurors— Continued.  Section 

of  court  of  justice  of  the  peace,  list  provided 

by  county  commissioners 854 

names  deposited  in  box 856 

challenge  to 861 

names  returned  to  box 863 

serving,  names  put  where 868 

defaulting,  fined 405 

drawn  by  county  commissioners 1727 

drawing  to  continue  until   scrolls   are  ex- 
hausted   1730 

for  special  term  of  superior  court 1731 

failure  of  commissioners,  whose  duty 1733 

dying  or  removing  from  county,  scrolls  de- 
stroyed    1729 

exceptions  to,  when  taken 1741 

exempt  from  arrest  under  civil  process 1735 

exemptions  from  service  as. .  1723,  2269,  2580,  3S8I 

fined  for  non-attendance 1734,  1740 

g:uilty  of  improper  conduct,  punished  for  con- 
tempt      654 

having  suits  pending  and  at  issue,  not  se- 
lected    1728 

list  of,  examined  by  commissioners 1725 

names,  called  before  impaneling 406 

put  in  locked  boxes 1726 

penalty  on  sheriff  for  failing  to  execute  writ 

of  venire 1740 

selected,  how  and  when 1722, 1723, 1724 

special    venire  issued  by  judge  in  capital 

cases , 1738 

special  venire,  how  drawn  and  summoned . . .  1739 
summoned  how;  to  attend  until  discharged.  1733 

sworn  in  civil  cases 405 

tales,  pay  of,  in  capital  cases  - 1737 

.quahfications  of 1733 

summoned  how 1733 

tax  fees  for  payment  of 732 

Jury, 

attorney  addresses,  how  long 30 

challenges  to 405 

drawn  how,  sworn  in  civil  cases 405 

damages  assessed  by 411 

drawn  by  county  commissioners 172^1731 

commissioners  paid,  how  drawn 1732 

facts  material,  in  divorce  determined  by 1288 

grand  jury,  how  drawn  and  who  compose  it.    404 

grand,  not  drawn  for  special  term 921 

in  inferior  court,  how  waived 810 

how  provided 811 

issues  of  fact,  tried  by,  unless  waived 398 

or  referred 403 

of  justices  of  the  peace,  box  of,  kept  by 855 

trial  by,  how  demanded  or  waived 857 

drawn,  trial  postponed 858 

summoned 859 

forthe  trial 860 

sworn  and  impaneled,  verdict 864 

less  than  six,  when 866 

fees  of,  deposited 869 

in  criminal  actions 898 

what  submitted  to 899 

officer  attending  sworn 827 

37 


Jury— Continued.  SECTION 

special  finding,  when 409 

to  control  general  verdict 410 

for  special  terms,  how  drawn 915 

certificate  of  attendance 918 

trial  by,  when  in  actions  between  landlord 

and  tenant 1770 

verdict  of,  general  or  special  409 

waived  how 416 

Justices  of  the  peace, 

additional  justices  elected 820 

adjournment  after  return  of  jury  on  what 

terms 870 

annual  meeting  of  board  of,  clerk,  &c 717 

answer  before,  when  title  to  real  property  in 

controversy 836 

appeal  to  superior  court,  eflTect, 

565,  865,  875,  876 

when  written  notice  not  given 877 

return  of.  to  be  made  by 878 

return  defective,  amended 879 

docketed  by  clerk 880 

heard  on  original  papers 881 

execution  stayed  on 882 

undertaking  on 883,  884 

in  criminal  actions,  accused  may  appeal. . .  900 

papei*s  of,  transmitted 901 

copy  of  complaint,  &c.,  to  be  given  on  pay- 
ment of  fees,  on 902 

or  recordari,  from,  superior  court  may  com- 
pel plaintiff  to  secure  costs 564 

when  plaintiff  liable  to  costs  of 566 

apointed  by  clerk,  certificate  sent  to  secre- 
tary of  state 89 

appointed  by  governor  for  new  townships, 

when •  819 

arrest,  affidavit  to  obtain  order  of 852 

order,  by  whom  made 851 

in  what  cases 850 

attachment,  affidavit  for,  to  be  filed  with 356 

code  of  civil  procedure  applicable  to 853 

garnishee  in,  how  summoned 364 

garnishee  judgment  against 364 

property  replevied  before  sale 361 

property,  perishable,  when  sold  under 360 

person  replevying  to  give  undertaking 361 

publication  of  warrant  and  summons 352 

undertaking  not  affected  by  irregularities . .  368 

vessel,  when  sold  under 360 

warrant  in,  dii'ected  to  whom,  contents —  357 

warrant  in,  executed  how 3M 

warrant  in,  levied  on  land,  what  to  do 364 

warrant  in,  to  be  published 350 

how ^^ 

warrant  in  undertaking,  how  conditioned . .  368 

attorney  of  inferior  court,  elected  by 814 

book  of  fines,  &c.,  to  be  kept  by 725 

causes,  when  tried  by 824 

civil  actions  before,  begun  by  summons 830 

in  claim  and  delivery,  to  try  title  to  property..  3-31 

affidavit 890 

sufficiency  of  sureties,  excepted  to 891 

costs  in  criminal  actions,  how  paid 896 


866 


INDEX  TO  VOLUME  I. 


Justices  of  fie  peace  -  Continued.  Section 

in  crimina  1  actions,  party  when  imprisoned 

for 904,  905 

to  be  itemized  by T34 

when  plaintiff  liable,  though  recovering  in 

superior  court 56G 

county  commissioners  biennially  elected  by.    TlC 
criminal    actions  disposed  of,  returned   to 

clerk 90ti 

damages  to  real  or  personal  property,  prose- 
cuted before 888 

depositions,  how  taken  before 1339 

dockets,  how  disposed  of 827,  8^8 

disposal  enforced 839 

provided  by  county  commissioners 831 

elected  by  general  assembly,  number  of..  819,  8:^0 
execution  on  what  and  from  what  time  a 

lien 841 

stayed  by  whom  and  how  long 842 

secmity  on  stay  of 843 

stayed  on  appeal 882,883,884,  885 

finding  and  sentence,  effect  of 903 

former  judgment,  evidence  of 844 

forms  in  court  of 909 

infamous  crime,  convicted  of.  penalty 826 

inferior  court  clerk,  elected  by 812 

established  by 802,  603 

judgments,  how  and  when  docketed 839 

how  removed  to  another  county 84G 

by  what  chapter  governed 389 

jurisdiction  in  bastardy 31 

in  civil  actions  on  contract 834 

of  torts 

in  criminal  actions 

not  final,  how  to  proceed 

final,  what  done 

peace  warrants 893 

jurors,  challenges  to 861 

list  of,  furnished  by  county  commission- 
ers     854 

names  deposited  in  box 856 

names  returned  to  box 862 

names  of  serving  jurors,  where  put 868 

not  to  serve  out  of  township 867 

jury  box  to  be  kept  by 855 

jury  trial,  how  demanded  or  waived 857 

jury  drawn  how,  tri.il  postponed 858 

how  summoned 859 

for  the  trial 860 

in  criminal  actions 898 

what  submitted  to 899 

sworn  and  impaneled,  verdict 864 

less  than  six  when 866 

fees,  deposit  of 869 

lien  of  docketed  judgment 839 

limitation  of  judgment 153 

new  trial  not  allowed 865 

officer  under  United  States,  eligible  as 825 

peace  warrant,  proceedings  on 8!»4 

penalty  for  marrying  white  and  negro 1085 

process  of,  not  quashed  for  want  of  form . . .    908 

when  issued 824 

not  Issued  out  of  county 871 


Justice^  uf  the  peace -Continued.  Section 

issued  out  ot  county  how  indorsed,  &c.. 

872,  873.  874 

qualification  of,  in  what  time 821 

rehearing,  application  for 845 

removal  of  actions  from  one  to  another 907 

of  domicil,  forfeiture  of  office 823 

resif^nation  of,  sent  to  clerk 823 

restitution  on  appeal,  when  ordered 886 

return  made  by,  of  all  criminal  actions  dis- 
posed of 906 

rules  of  proceedings  in  court  of 840 

pleadings,  complaint  and  answer (1)    840 

written  or  oral (2)    840 

complaint  to  contain  what (3)    840 

answer  what (4)    840 

no  particular  form (5)    8*0 

defendant   not   appearing,  plaintiff  must 

prove  his  case (6)    840 

account  or  written  instiniment  delivered. 

complaint (7)    840 

variance  immaterial,  disregard^ (8)    840 

amendments  made  how (9)    840 

account  or  demand  excluded  when  —  (10)    840 

demurrer HI)    840 

sustained,  what  done 02)    840 

docket,  proceedings  entered  on (13)    840 

execution  when  to  issue 04.)    840 

code  of  civil  procedure  applicable  to..  (15)    840 

offer  of  judgment  by  defendant 06)    840 

action  may  be  continued 0")    840 

successor  to  determine  unfinished  business..  828 
sum  demanded  exceeding  $200,  proceedings.  835 
summons, by  whom  issued,  and  contents..,.    832 

service  and  return  of 883 

swearing  profanely  before  a   justice.   &c., 

penalty 848 

title  to  real  estate  in  controversy,  proceedings    837 
another  action  may  be  instituted  in  supe- 
rior court 888 

treasurer,  county,  power  to  abolish 768 

vacancies  in  inferior  court  filled  by 816 

witnesses,  summoned  how,  penalties 847 

Laborer, 
indebtedness  to,  by  railroad  companies,  bow 

collected,  action  brought  in  what  time..  1942 
share  of  crop,  not  liable  to  executions  against 

employer 1796 

See  Liens, 
Landlord, 
attornment  not  necessary  upon  conveyance 

of  reversion,  saving 1764 

controversy   between  tenant  and   landlord, 

how  determined 1756-1758 

determination  of  tenancy,  length  of  notice...  1760 
joined,  inaction  to  recover  real  property,  aa 

defendant ' 184 

possession  of  crops  deemed  vested  in 1754 

preference  of  lien 1754 

rents,  how  apportioned  when  estate  of  les- 
sor terminates  by  death,  I'k.c 1747 

limited  in  succession,  on  death  of  perBon 
entitled,  to  whom  payment  mode 1748 


/ 


INDEX  TO  VOLUME  I. 


Landlord— Contiuued.  Section 

rent,  demand  of,  not  ne.-essary,  when 1745 

right  to  recover  for  use  and  occupation, when 

no  express  agreement 1746 

seizure  of  crops  by,  misdemeanor 1759 

tenants    holding    over,     how    dispossessed 

by 1766- 177G 

forms  sufficient  in  such  cases 1779 

See  i/case,  LessoVj  Tenant. 
Land, 

aliens  hold  and  convey 7 

allotted  to  af  tex'-bom  child 1536 

corporations,  how  to  convey 685 

quantity  held  by 6G6 

devised  to  l>e  sold,  who  may  sell 1493 

going  on,  after  being  forbidden 1120 

guardian  liable  for  lands  of  ward  forfeited 

for  taxes 1595 

may  lease  lands  of  ward,  how  long 1591 

marks,  penalty  for  alteringor  removing 1063 

private  acts  authorizing  sale  of,  repealed 458 

public,  trespassing  upon,  penalty 1121 

sold  under  execution,  how 454-457 

Larceny, 

cases  of,  penalty 1064-1075 

distinction  between  grand  and  petit,  abol- 
ished    1 075 

Kiair, 

issue  of 391,  392 

Judge  to  explain,  to  jury 413 

of  other  states  and  territories,  evidence 1338 

Lease, 

agreement  in,  to  repair,  how  construed 1752 

contracts  of,  when  shall  be  in  writing 1743 

of  farming  lands  determining  during  current 

year,  tenant  to  hold  to  end  of  year 1749 

Leave, 
to  bring  action  to  annul  corporation,  how 

obtained 606 

to  issue  execution  upon  dormant  judgment. .    440 
Legacies, 

of  absentees  may  be  paid  into  court 1526 

judge  to  order  payment  of 1519 

recovered  by  special  proceeding 1510 

by  action  before  court  at  term 151 1 

Legitimation, 

effect  of 40 

petition  for,  filed  in  superior  court 39 

Lessee, 
in  case  of  accidental  damage,  may  surrender 

his  estate 1753 

removal  of  crops  by,  without  notice,  misde- 
meanor   1759 

rights  of,  to  crops 1755 

surrendering  possession  to  other  than  lessor.  1760 
injuring  house,  fniit  trees,  &c.,  misdemeanor  1761 
See  TeJiant. 
Lessor, 
for  raining  and  getting  timber,  entitled  to 

remedies  of  landlord 1763 

not  partner  with  lessee  except  by  contract.  1744 

remedy  of,  when  tenant  deserts  premises. . .  1777 

See  Landlord. 


Letters  of  Administration,  Section 

cum  tetftamcnto  aniicxo^  when  and  to  whom 

granted 2166,  21G7 

administrator  with  will  annexed  to  observe 

testator's  will 2168 

revoked,  when  and  by  whom 2170 

See  Executors  and  A  dminiatrators. 
Libel, 

limitations  to  action  for 156 

how  stated  in  complaint 265 

answer,  what  to  contain 266 

on  trial  for.  defendant  may  give  truth  of,  in 

evidence 1195 

License, 

of  attorney,  tax 20,  21 

marriage,     when    and    how    issued,     pen- 
alty   1814-1819 

Liens, 

actions  on,  where  brought 1785 

for  advancements 1799 

amount  due  sub-contractors,  &c.,  not  to 

exceed  amount  due  contractor,  &c 1S08 

on  assets  not  created  by  bringing  action. . .  1432 

on  buildings,  crops,  farms,  &c I78l-178;5 

chapter  on,  not  to  affectprior  rights 1786 

of  claim  for  iu^provement 479 

against  real  and    personal  property,    how 

and  where  filed 1784 

on  colts,  by  owners  of  stud  horses  or  jacks. .  1797 

discharged  how 1793 

of  docketed  judgment 435 

of   docketed   judgments   of  justice  of  the 

peace 839 

employer   attempting   illegally    to   remove 
■property  subject  to,  laborer  may  have 

remedy  by  attachment 1795 

execution  against  personal  property 448 

on  judgments  under 1791 

of  judgment,  of  justice  of  the  peace 841 

rendered  by  clerk  for  money 85 

supreme  court 436 

for  labor  done,  on  real  estate,  how  enforced, 

1781,  1801,  1803 
for  railroad  companies  how  collected,  ac- 
tion brought  in  what  time 1942 

of  lessor  on  crops 1754 

for  material  furnished,  how  enforced,  1801,  1803 

notice  of,  where  and  how  filed 1789 

given  by  sub-contractor,  <S:c.,  liability  of 

owner 1803 

priority  of  payment  of 1792 

proceedings  to  enforce,  brought  where  and 

when  1790 

on  real  estate,  judgment  and  execution 1794 

on   vessels  for  labor  in  loading,  &c.,  how 

^    filed  and  enforced 1804-1807 

judgment  against  contractor  to  be  a  judg- 
ment against  master,  &c 1807 

warrant   to    sheriff   for    seizure    of   crops, 

'      when 1800 

Life, 
estates  for,  not  devised,  when  deemed  inher- 
itances  '. (II)  1281 


868 


INDEX  TO  VOLUME  T. 


Life— Continued.  SccTiox 

tenants  for,  rights  of,    against  grantees  of 

reversions 1331, 1765 

grantees  against 1332 

Lights, 

false,  holding  out  on  shore,  penalty 1024 

Ltznitations, 
certain  contingent,  how  construed  in  deeds 

andwiUs..^ 1327 

Limitation  of  actionsi 

CONCERNING  REAL  PROPERTY, 

action  not  brought  unless  plaintiif  is  seized 

within  twenty  years,  exceptions 143 

adverse  possession  seven  years  under  color, 

effect 141 

adverse  possession  twenty  years  under  metes 

and  bounds,  effect 144 

applicable  to  actions  by  the  state 159 

to  what  causes  of  action 136 

availed  of  by  answer 138 

disabilities,  cumulative 149 

persons  under 148 

entry  not  valid  unless  action  broioght  in  one 

year  after .'. 145 

foreclosure  of  mortgage,  ten  years 152 

injury  to  incorporeal  hereditament,  six  years  154 

nonsuit,  proviso  in  case  of 1<2 

possession  thirty  years,  or  twenty-one  years 

undercolor,  bars  state 139 

when  presumed 146 

railroads,  &c.,  not  barred  of   certain  real 

property 160 

real  estate,  when  state  will  not  sue 139 

redemption  of  mortgage,  ten  years 152 

tenant's  possession  for  twenty  years  is  that 

of  landlord 147 

time,  when  not  counted 137 

OTHER  THAN  FOR  REAL  PROPERTY, 

account  current,  when,  begins  to  run 160 

against  defendant  out  of  state 

against  sheriff,  &c.,  for  trespass  under  color 

of  office 166 

by  aliens 165 

applies  to  actions  by  the  Btate 159 

assault,  one  year 166 

battery,  one  year 

availed  of  by  answer 138 

bail,  three  years 155 

bond  of  executor,  &c.,  six  years  after  audit- 
ing flnal  account  154 

contracts,  express  or  implied,  three  years, 

exceptions 155 

under  seal  against  principal,  ten  years 152 

under  seal  against  surety,  three  years 165 

creditor  against  personal  or  real  representa- 
tive, seven  years 153 

criminal  conversation,  three  yeara 165 

death  of  person  entitled  to  action  before 
time  expires;  effect  of  claims  tiled  with 
personal  representative 164 


Limitatiou  of  actions— Continued.  Sectiom 

for  escape,  against  officer,  one  year 156 

false  imprisonment,  one  year 156 

fraud  or  mistalce,  three  years 156 

injury  to  person  or  rights  not  arising  on  con- 
tract, three  years 155 

judgment  of  any  court  of  a  state  or  United 

States,  ten  years 152 

of  justice  of  the  peace,  seven  years 153 

liabihty  by  statute  other  than  penalty,  three 

years 166 

libel,  one  year 158 

official  bond,  six  years 154 

by  persons  under  disability,  exceptions 163 

slander,  six  months 167 

specific  recovery  of  goods  or  chattels,  three 

years 155 

statute  for  penalty,  &c.,  one  year 156 

siu'eties  on  bond   of   executors,  &c.,  three 

years 155 

taking,  &c.,  goods  and  chattels,  three  years.  166 

trespass  upon  real  property,  three  years 165 

SPECIAL, 

acknowledgment  of  partner  or  obligor  repels 

statute  of 171 

actions  against  directors,  Ac,  of  moneyed 

corporations  not  affected  by 175 

against  personal  representative  by  creditor 

personally  served  with  notice,  one  year.  156 
on  claim  presented,  rejected  and  not   re- 
ferred, six  months 1427 

against  stockholders  In  old  banks  barred. .  176 
to  enforce  payment  of  bills,  &c.,  issued  by 

corporations 174 

bastardy 86 

claim    presented  to  executor,  &c.,  barred 

when  and  how 1424,  1428 

claims  agahist  county  barred  In  two  years 

after  maturity 756 

fees  due  officers,  three  years 166 

joint    tenants  of    personal    property,   bar 

of 178 

misdemeanor,  two  years,  exceptions 1177 

nonsuit,  &c.,  new  action  in  one  year 166 

payment  repeJs  statute 172 

proceedings  to  enforce  liens 17W 

promise  in  writing  repels  statute 178 

relief  not  otherwise  provided  for,  ten  years. .  158 

several  disabilities  co-existing,  all  removed . .  170 

disability,  when,  a  bar  of 169 

tenants   in  conmion  of  personal  property, 

when  some  barred,  others  not 173 

time  during  controversy  over  probate  of 

wills,  iSc,  not  counted 168 

of  injunction  or  statutory  prohibition  not 

coimted 1*J7 

Liquors,  <^ 

adulterating 982-984 

list  of  retailers  of,  furnished  grand  jury 2087 

retailing,  without  license,  penalty 1078 

sale  of,  to  minors  forbidden 1077, 1078 


INDEX  TO  VOLUME  I. 


869 


lilquQrs — Continued.  Section 

on  Sunday  unlawful 1117 

within  two  miles  of  political  meetings 1079 

See  Local  Option,  Vol.  IL 
Lis  pendens, 

notice  of 229 

Live  Stock, 
felonious  and  wilful  injury  to,  how  pun- 
ished   1002, 1003, 1068 

misraarking: 1001 

Lost  deeds,  papers  and  'cpills, 

copy  of  used 600 

evidence  of 1348 

o£  lost  wUb,  when 2183 

See  Burnt  and  Lost  Recorda. 
Lotteries, 
Proliibited;    selling  of  tickets,   forbidden. 

penalty 1047,  1048 

Lowlands, 
draining  and  damming  canal  ditch,   &c., 

when  cut  through  a  yard,  &c 1299 

commissioners  to  designate  width  of  canal, 

&c 1302 

to  assess  labor  for  repairs;  report  con- 
firmed, a  judgment 1306 

earthfor  dam,  how  talcen  in  draining;  own- 
er may  adjoin  his  own  dam 1301 

excavated  from  canal  removed  or  levelled.  1303 
fences,  cSc,  across  canal,  <S:c.,  made  by  pro- 
prietor draining 1800 

proceedings  for  draining  and  damming ;  three 
commissioners  appointed,  duties  of, 

1297,  1298 

report,  cost  and  damages 1299 

for  joint  repairs  of  canals 1307 

to  drain  into  canal  of  another 1305 

for  draining  and  damming,  special,  costs, 

1323,  1324 
persons  failing    to  worli,   how   recovered 

against : 

interested  in,  to  contribute  for  repairs,  &c., 

proceeding 1310 

proprietor  not  to  open  drain  within  thirty 

feet  of  canal 1304 

Lunatics, 

certificate  of  superintendent  of  insane  asy- 
lum, evidence  of  lunacy  so  as  to  appoint 

guardian 1673 

defend  by  guardian  ad  litem 181 

estates  of,  without  guardian  managed   by 

clerk 1676 

feme  covert,  abandoned  by  husband,  her 
support  ordered  out  of  husband's  prop- 
erty    1686 

guardian  of,  appointed  by  clerk 1670 

order  for  sale  or  rent  of  land  of,  how  ob- 
tained  1674, 167S 

petition  to  have  persons  declared,  inquisi- 
tion   1670 

proceedings  to  condemn  land  of,  for  railroad 
companies,  guardian  served  with  pro- 
cess   Itl44 

eue  by  guardian  or  next  friend 180 


Lunatics— Continued.  Section 

surplus  income  of,  advanced  in  certain  cases 

to  child  or  grandchild 1677,  1684 

purposes  of  such  advancement  of,  made 

and  to  whom  paid 1678 

partiesto  proceeding 1679 

appeal  allowed 16S3 

rule  to  be  observed  by  clerk  in  ordering 

advancement  of 1680 

clerk  to  select  persons  to  be  advanced —    1681 
advancements  of,  secured  agiansb  waste. .  1682 
order  for  advancement  shall  cease  on  restor- 
ation of  insane  to  sanity 1685 

See  Guardian  and  Ward. 
Magistrate, 

accused  taken  before  what 1141,  1142 

authorized  to  keep  the  peace 1216 

criminal  process  issued  by  what 1132 

duties  and  powers  of. . .  .1130-1134, 1139, 1140, 

1144,  1147,  1149-1159,  1166,  1217,  1220-1224 
not  indicted  for  improperly  indorsing  war- 
rant   1137 

prisoners  let  to  bail  by  what 1160,  1161 

warrants,  how  indorsed 1136 

before  whom  returnable 1143 

maiming, 

with  and  without  malice 1000,  1080 

Malicious  injury, 

to  property,  pereonal  and  real 1081,  1082 

to  railroads,  &c.,  when  death  ensues  and 

when  not 1098 

Mandamus, 

application  for  writ  of 622 

manner  of  issuing  summons 623 

Manslaugliter, 

how  punished 1055,  105(5 

Marriage, 

consent  necessary  to  make  valid 1812 

disolved  tor  what  causes 1285 

a  vinculo,  effect  on  property  of  parties 1843 

kinship,  within  what  degrees,  not  lawful... .  1811 
licenses  for,  when  and  how  issued  by  register, 

1814,  1815 

book  of,  kept  by  register  of  deeds 1818 

to  be  recorded,  penalty  for  failure 1819 

minister  or  officer  not  to  celebrate  without 

hcense 1813,  1816, 1817 

what  unla^vful 1083,  1065,  1810 

with  female  under  fourteen 1083 

white  and  negro 1084,1085,  1810 

what  void 1284 

on  application  of  parties 1283 

when  perfected  between  parties  formerly 

slaves 1843 

who  may  and  who  may  not  contract — 1809,  1810 
Marriage  settlements, 

good  against  creditors,  when 1270 

registered,  or  void  as  to  creditors.. 1270,  1820,  1821 
Married  'Woman, 

action  by  and  against 178 

assault  with  intent  to  have  carnal  knowledge 

ot,  by  fraud HO* 

carnal  knowledge  of,  by  fraud,  penalty  ...  1103 


S70 


INDEX  TO  VOLUME  I. 


Married  woman— Continued.  Section 

execution  against,  what  to  be  sold 443 

judgment  against  or  for,  how  collected 424 

privy  examination,  taken  and  certified, 

(5)  (6)  (7)  1246 
Marshal, 
of  supreme  court,  appointed  by  justices,  sal- 

aiy 950 

Masters, 

of  apprentices,  misconduct  of IC 

negi-o.  wliite  child  not  bovmd  to IS 

provide  what 13 

McCulloch, 
evidence  necessary  to  support  title  under. . .  1336 
grant  or  certified  copy  from,  sufficient  evi- 
dence    133T 

Mechanic's  Uen 1781-1783 

Meetings, 

of  coimty  commissioners 706 

Merger, 

of  actions 131 

Mile  post, 

defacing  and  removing,  misdemeanor 2031 

duty  of  overseers  of  roads  to  keep  up. .  .2030,  2032 
Miller, 

false  toll  dishes,  to  keep,  misdemeanor 1848 

to  grind  according  to  turn 1847 

measures  to  be  kept  by 1848 

MlUs, 

action  foe  building,  proceedings 184SW856 

canal,  &c.,  not  allowed  to  be  cut  so  as  in- 
jure   1299 

damages,  when  dams  abated  as  nuisances . .  1859 
duty  of  persons  to  whom  leave  is  granted  to 

bmld 1856 

injury  done  by  erecting 1858 

judgment  for  erection  of,  against  plaintiff. . .  1863 

when  not 1862 

for  annual  sum  as  damages,  binding  five 

years 1860,  1861 

owners  of,  to  keep  up  bridges,  &c.,  penalty, 

1086,  2036,  2037 
power  of  court  to  appoint  commissioners. . . .  1850 

duties  of 1853 

report  of 1853 

power  of  com't  on  return  of  report 1855 

what  shall  be  public 1S16 

when  not  allowed  to  be  built 1654 

Mining, 
lessors  for,  entitled  to  remedies  of  landlord . .  1703 
See  3292-3301. 
Slinister, 

See  Clergyman. 
Minutes, 

of  superior  court,  read  by  clerk '925 

Misdemeanor, 

iiidit.'tment,  &c.,  for,  found  in  two  years 1177 

Misjoinder  of  canscs  of  action^ 

demurrer  for 239 

demurrer  sustained,  judge  may  order  actions 

to  be  divided 272 

Mismarking, 
cattle  and  live  stock JOOl 


Mistake,  SicnoK 

action  for,  limitation 155 

relief  in  cases  of 274 

Money, 
bills  or  evidences  of  debt  Issued  as,  by  cor- 
porations, not  affected  by  statute  limita- 
tion     174 

clerk  to  report  amount  on  hand  on  oath 90 

to  state  and  publish  amount  remaining  in 

hands I8ft4 

collected  by  sheriff  to  be  paid  immediately  to 

party  entitled 208O 

description  of,  sufficient  in  indictment  for 

larceny ii90 

executor,  &c.,  of  deceased  guardian  to  pay 
into  office  of  clerk,  money  belonging  to 

ward,  effect  of  payment 1622 

in  hands  of  clerk  and  sheriff  used  by  county 

until  demanded 18C9 

of  legatees,  paid  by  executors,   &c.,   into 

clerk's  oCBce 1543 

clerk  to  receive  and  give  receipt  for 1644 

Monuments, 

defacing  or  removing  unlawful 1088 

Mortgage, 

as  bond  for  costs ;  affidavit  of  value 121 

executed,  &c.,  how  and  by  whom 120 

increased  when 119 

chattel,  fee  for  registration  and  probate 1274 

form  of 1273 

sale  under,  made  when 1273 

discharged  and  released,  how 1271 

good  against  creditors  only  from  registra- 
tion      1854 

in  lieu  of  official  bond ;  foreclosure 118 

of  clerk 12s 

limitation  of  action  of  foreclosure.  »S:c 152 

property  of  corporations  not  e.'sempt  from 
ceitain  liabilities  on  account  of  clauses 

in 12B6 

property  under,  unlawful  to  dispose  of 1089 

for  purchase  money,  need  not  bo  executed  by 

wife 1872 

service  of  notice,  how  made  on  unknown  de- 
fendant in  actions  of  foreclosure 221 

Mortuary  tables, 

received  as  evidence 185S 

Mother, 

allowance  made  to,  in  bastardy 86 

of  bastard  to  make  affidavit  for  arrest  of  the 

father 81 

evidence  of,  presumptive  evidence  of  pater- 
nity      82 

natural  guardian  of  child,  when 1566 

may    appoint  guardian   by  deed  or  will, 

when 1562 

when  to  be  heir  of  child TO  (10)  1281 

Motion, 

decision  of,  by  judge TO    694 

for  judgment  on  answer 249 

made,  how  and  wliere r'94 

notice  of 696 

time  of  service 69S 


INDEX  TO  VOLUME  I. 


Monntain  trout. 


Section 


871 


Section 


catching,  &c.,  when  unlawful 1123 

Municipal  corporations, 
claims  against,  when  presented  and  when 

barred ^.„ 

to  be  refused  before  action  maintainable . .     lai 
complaint  against,  verified  and  to  oontam 

what 

Murder, 

how  punished 

Naturalization, 

See  Appendix,  Vol.  II. 
Nature, 

crime  against 

Neglect, 

excusable,  relief  in  cases  of . . . : ■^''^ 

Negligence, 
evidence  of,  when  cattle  killed  by  railroad. 

2326,  2329 
:  other  officer  liable  for  debt  in  case 


1010 


sheriff  ( 
of.. 


Negotiable  bills, 

action  on,  by  whom  maintained 41 

Negro, 

cannot  marry  white  person 1084, 1810 

issue  of,  to  inherit  when (13)  1881 

white  child  not  bound  to 1~ 

New  trial, 

not  allowed  by  justice  of  the  peace 845,  865 

granted,  when  defendant  found  guUty 1202 

motion  for,  where  recorded 41~ 

party  may  appeal  from  order  grantmg  or  re- 
fusing     ^^ 

Next  friend, 
infants,  idiots,  lunatics  and  inebriates,  to  sue 

by ' 

Non-resident,  _^ 

action  against,  limitation ^■. 1^- 

summons  served  how (2)  218 

Non-suit, 

not  allowed  after  verdict ■'•™ 

limitation  in  case  of 1^^ 

new  action  in  one  year  after l"*- 

when  defendant  entitled  to  judgment  of .  ..238,  282 
Notaries, 

certify  affidavits ''■^^ 

protest  of,  evidence  of  demand *'■> 

take  acknowledgment,  &c.,  of  deeds. (1)  (2)  (3)  1346 
Notice, 

in  cases  of  contempt ''■^ 

constables  execute,  by  leaving  copy 044 

to  defendant  with  summons  when  no  per- 
sonal claim  is  made,  form  of 

destruction  or  defacing  of  legal 

length  of.  reqiured  to  terminate  a  tenancy  . . 

of  lien  when  and  where  filed 

by  sub-contractor,  laborer,  material  man. . 

of  lis  pendcThs 

of  motion,  and  time  of  service 

to  produce  claim  against  estate  of  decedent, 

1481,  1422,  1423 

served  personally '■'** 


Notice — Continued. 

return  on,  evidence  of  service "W 

service  of ^ 

how  proved ^"^ 

Nuisance, 

injury  remediable  by  action 630 

judgment  in  action  of '^^ 

mill-ponds  when  abated  as,  damages 1859 

stagnant  water  not  allowed  when  draining 

lowlands 

Nuncupative  well 

Oath, 

administrator 

public 

attorney 

clerk  of  superior  court 
of  supreme  court — 

collector 

commissioner  of  affidavits •  •    '»"' 

commissioners    to  appraise  lands    for  rail- 
roads   

constable 

coroner 

executor 

finance  committee '"" 

judge  of  superior  court,  where  returned 9-i 

justices  of  the  peace ^'^ 

of  the  supreme  court ^^ 

officer  attending  jm-y 

to  take,  before  acting,  penalty 

police  of  railroads 

public  guardian 

See  index  of  Vol.  U. 
Obstruction, 

of  water  courses 

of  roads,  &c.,  misdemeanor 

Offenders, 
absconding  from  work-houses. . 

speedy  trial  of 

Office, 

action  to  try  title  to 

triable  at  return  term 

buying  and  selling,  penalty 

clerk  going  out  of,  delivers  records,  &c.,  to 

successor 

contracts  for  purchase  or  sale  of,  void 
forfeiture  of,  by  clerk  faiUng  to  keep  office    ^^^ 

hours j  ■  "tV  c' 

justice  of  the  peace  may  hold,  under  U.  b.    ^ 

government •••■ 

officer  to  take  oath  before  acting  in.  penalty.  18.  J 

person  not  to  hold,  contrary  to  constitution. .  IS'U 

hold  until  qualification  of  suc- 


1299 
I  2148 


1387 
1393 


1387 


1946 


1387 


1873 
1090 
1660 


2065 


1241, 1658 


1871 


of  protest. 


persons  to  noiu  imui  ^luc...^. --  - 

cesser ' 

usurpation  of,  action  for 

complaint  and  arrest  of  defendant 609 

usurping,  penalty 612,015,18,0 

when  several  claim,  one  action  to  try  title 

„    „                                                        614 

of  all 

OfiBcers,  ^^ 

assuming  to  be.  punished , ./ ' '  t« 

county  commissioners,  when  to  qualify ^^ 

county,  when  and  how  qualified '"' 


872 


INDEX  TO  VOLUME  I. 


Officers— Continued.  Section 

books  and  papers  to  turn  over  to  successor, 

penalty 612 

inferior,  punished  as  for  contempt (6)    654 

penalty  on,  forfailingto  execute process,&o.  1112 
required  to  take  oatli  before  acting,  failure, 

penalty 18T3 

Official  Bonds, 

action  on.  where  brought 193 

limitation  of  action  on 154 

appointees  to  vacant  ofBces,  to  give 1866 

approval ,  execution  and  custody  of 1877 

clerk  of  superior  court 72 

failure,  vacancy 76 

of  inferior  court 812 

of  supreme  court 958 

constable 647 

coroner 661 

county  treasurer 766 

of  defaulting  clerk,  how  put  in  suit 87 

destroyed,  action  on 62 

filed  where (38)  707 

insufficient,  judge  to  require  better,  failure  to 

give 1885 

irregularities  in  taking,  or  in  form  of,  not  to 

invalidate 1891 

mortgage  in  lieu  of ;  foreclosure 118 

penalty  on  officer  for  acting  without  giving . .   1882 

public  guardian ._ 1559 

public  administrator 1390 

renewed  annually,  failure,  vacancy 1874,  1875 

sheriff 2073 

suits  on,  what  complaint  to  state 1883,  1884 

summary  remedy   on  certain,  in   superior 

court 1889 

Burety  on,  to  justify 1876 

Official  Reports, 

book  of,  provided 91 

of  county  officers 728,  729,  730,  731 

filed  where 729 

Opinions, 
judge  does  not  express,  on  matters  of  fact. .    413 
of  justices  of  supreme  court,  delivered  in 

writing 964 

how  certified 968 

Orders, 

definition  of 694 

before  issuing  Injunction,  restraining  party.  342 
made  out  of  court,  how  vacated  or  modified.  546 
record  of,  to  be  kept  by  clerk  of  superior 

court (8)  113 

re-straining,  against  corporation 019 

may  be  issued  after  answer 310 

not  to  issue  for  more  than  twenty  days ; 

continues  until  vacated 346 

Orphan, 

apprenticed 11 

estate  of,  without  guardian,  how  secured 1610 

Overseer  of  roads, 

penalty  for  neglect  of  duty 1054 

penalties,  powers  and  duties,  2019-2023,  3026, 

2027,  2029,  2030,  2032,  2033,  2043,  2044 
See  Roada, 


Parents,  Sbictior 

divorced,   custody  of  children   settled   by 

court  1570 

father  may  appoint  guardian  by  deed  or  will  1502 

inherit  from  child,  when (6)  (10)  1281 

mother  may  appoint    guardian  if    father 

dead 1552 

effect  of  such  appointment 1563 

powers  and  liabiUtiesoftbe  guardian 1S64 

mother  to  be  natural  guardian,  if  father 

dead 1665 

party  to  proceeding  for  adoption ( 

relation  of  child  and  parent,  established  when 

child  adopted 3 

Particulars, 

bill  of,  when  required  in  pleading 259 

Parties, 

appearance  of 109 

bookacoimts,  how  proved  by 691 

death  of,  between  verdict  and  judgment,  not 

to  be  alleged  tis  error 933 

designation  of 134 

evidence  of 1351 

examined,  when  and  when  not 590 

at  or  before  trial 680, 581 

in  proceedings  for  dower 2112,  2114 

real,  to  bring  action 177 

refusal  of,  to  testify,  effect 584 

severally  Uable  may  be  jointly  or  severally 

sued 186, 187 

testimony  of,  rebutted 683 

in  new  matter  may  be  rebutted 686 

united    in   interest  must  be  joined  in  suit; 

when  one  may  sue  for  all 185 

who  may  be  plaintiffs 183, 184 

who  may  be  defendants ]84 

Partition, 

allowancas  to  parties  in,  how  paid 1902 

compensation  of  commissionersselling  land  in  1910 
court  may  grant  an  order  of  possession  on 

judgment  in 1904 

'may  compel  parties  in,  to  execute  and  de- 
liver deeds  in 1913 

decree  for,  in  another  state,  how  enforced...  1914 
judge  to  decide  in  reference  to  the  law  of  the 

other  state ]  915 

decree  of  confirmation  of  report  in,  effect. . .  1897 

decreed  by  the  court,  when 1912 

dividends  in,  bear  interest  until  paid;  charged 

on  minor,  when  payable ,1899,  1900 

dower,  how  apportioned  in  1909 

effect  of  deed  of  officer  making  sale 1921 

final  decree  in,  when  declared  conclusive.'. . .  1913 
oath,  duties  and  compensation  of  commis- 
sioners for 1893-1896,  1902,  1913,  1910,  1922 

of  personal  property,  how  made;  commis- 
sioners, sale  advertisement,  report..  1917,  19^1 

petition  for 1892, 1911 ,  1914 

when  land  is  situated  in  several  counties, 

where  filed 1898 

proceeds  of  sale  for,  how  seciu'ed  for  in- 
fants. &c 1908 

proceedings  for 1892,1903,19-^ 


INDEX  TO  VOLUME  I. 


873 


Partition — continued. 

where  lands  lie  partly  in  this  and  another 


1911 


and  decrees  in,  after  confirmation,  how  im- 
peached  1896,1906,1918 

for  impeachment  do  not  affect  purchaser 

for  value  without  notice 1896, 1906,  1919 

who  authorized  to  sell  in  decrees  for 1906 

Partners, 
acknowledgment,  &o.,  of  one,  after  dissolu- 
tion does  not  bind  others 1"1 

lessore  not  partners  with  leases  unless  by  con- 

tract ^''^ 

See  Mines,  Vol.  11. 
Paternity, 

issue  of 82^ 

Pauper, 

appeal ^^ 

counsel  assigned ^^^ 

costs  not  recoverable  against 218 

suit  how  brought 210,    313 

Payment, 

effect  of,  to  bar  statute  of  limitations 173 

how  pleaded  in  suits  on  bonds 933 

of  money  ordered,  when 382 

Peace, 

what  officers  to  keep  the 1126 

Peace  warrant, 
proceedings  on  before  justice  of  the  peace . .    894 
when  issued,   to  whom  directed,  duty  of 

magistrate  on  return  of 1219-1321 

Peddling, 

without  license,  penalty 1091 

Penal  suit, 

effect  of  plea  of  former  judgment  in 933 

limitations  of  action (3)    156 

penalty,  how  discharged 934,    935 

Penalties. 
against  directors,  &c.,  recovered  In  three" 

years,  after  discovery  of  facts 175 

suit  for,  brought  how  and  by  whom. . . .  1312,  1313 
Perlsliable  property, 

may  be  sold  when 360,    554 

Perjury, 

indictment  for,  to  contain  what 1185 

how  punished l^S^ 

subornation  of ,  penalty 1093 

Person, 

execution  against  the *•" 

party  may  appear  in •  •     109 

living,  limitation  to  heirs  of,  to  be  to  his 

children 1^20 

Petition, 

forgery  of  names  to,  penalty 1031 

judge  to  approve,  infants  joining  in 286 

parties  asking  same  relief  by ■ 284 

for  rehearing  in  supreme  court,  when  and 

howflled ^^ 

summary  hearing  of.  by  clork 285 

Plaintiff, 

costs  when  allowed  to 525 

failing  to  file  complaint,  non-suited 338,    283 

money  coUected  for,  paid  by  sheriff 2080 


Section  |  PlalntilT— Continued.  SEcmoif 

to  give  security  for  delivery  of  property 834 

who  joined  as l^i    1^5 

Plank  roads, 

injuring  maUciously 1098 

land  condenmed  for 1708 

Plea, 
"  not  guilty  "  entered  for  accused  standing 

mute 1198 

Pleadings, 

amendment  of 261,  272,  273,  274 

bill  of  particulars  required  in 259 

conditions  precedent,  how  stated 263 

couatrued  Uberally 260 

defendant  unknown,  sued  by  any  name 275 

failure  of  proof  in 271 


forms  of 231 

immaterial  errors,  &c.,  in,  not  regarded 276 

in  inferior  as  in  superior  court 809 

instrument  for  payment  of  money  only,  how 

set  forth 263 

irrelevant  or  redimdant,  indefinite  or  uncer- 
tain     261 

items  of  account  not  stated  in 259 

copy  of  account  furnished  adverse  party 

on  demand  259 

verified,  when 259 

in  courts  of  justices  of  the  peace 840 

private  statutes,  how  pleaded 264 

relating  to  judgment 262 

subscribed  and  verified 257 

supplemental 277 

time  for  filing  enlarged ■_■    283 

variance  in 269,  370,  271 

verified,  how 226,  258 

Pluries  summons, 

when  issued 205 

Pooling  freigiitS'  ^"t 

forbidden l^^S 

Poison, 

unlawful  to  put  in  streams 1094 

See  Vol.  n,  Driwjs,  Poisons. 
Political  speaking, 

sale  of  liquors  in  two  miles  of,  prohibited ....  1079 
Poor, 

maintenance  of — (21)    70i 

See  Vol.  n. 
Posse  comitatus, 
sheriff  or  other  officer  may  call,  to  his  aid,  in 

certain  cases 829,1121,1643 

Possession, 

•  court  may  grant  writ  of,  in  partition 1904 

seven  years  adverse,  under  color,  bars  whom.    141 
twenty    years    adverse,    imder    metes   and 

bounds,  gives  title 1** 

thirty  years  bars  state,  or  twenty-one  years 

under  color 1^' 

and  claimant  under  it I'lO 

railroads,  &c.,  not  barred  by IM 

of  tenant,  deemed  that  of  landlord 147 

when  presumed  

Power, 
of  attorney,  when  filed  tor  appearance » 


874 


INDEX  TO  VOLUME  I. 


Power— Continued.  Section 

how  proved  in  and  out  ot  state 1249 

conveyance  under,  duly  executed  by  /«»« 

coiiei-;,  valid 12S7 

ot  married  woman  to  malfe  a  will 1839.  213S 

o£  sale  under  wiU  not  affected  by  clerk— on 

executors  and  administrators 1415 

Pregnancy, 
husband  or  wife  may  testify  as  to,  in  case  ot 

divorce 1288 

of  wife,  before  marriage  ground  of  divorce, 

(4)  1285 
Preliminary  trial, 

prisoner  to  have,  in  capital  cases 1142 

Presentment, 

no  person  arrested  on 1175 

witiiesses  and  grand  lurors.  indorsed  on 1176 

Pretended  riglits  or  titles, 

buying  and  selling,  prohibited 1333 

Principal 2093-2101 

See  Sureti/. 
Prisoner, 
answers  ot,  on  preliminary  examimition  re- 
duced to  writing II47 

bound  over,  when 1163 

committed  to  what  jail II64 

counsel  assigned 114« 

discharged,  when 1151 

to  examine  witnesses 1148 

examination  of,  in  misdemeanors  need  not 
be  reduced  to  writing,  nor  be  in  the  pres- 
ence of  witnesses 1149,  1153 

informed  that  he  can  refuse  to  answer 1146 

officer  having  charge  of,  may  talie  bail 1S32 

Privy  examination, 

by  whom  taken  and  hovr  certiQed (5)  1346 

clerk  not  to  order  registration  of  deed  with- 
out  (6)  1246 

form  of  certificate (7)  1  a46 

Probate, 
office  of  judge  ot,  abolished,  clerk  performs 

duties 102 

office  hours  for,  business 114, 115 

Proceedings, 

rules  of,  in  court  of  justice  ot  the  peace 840 

supplementary  to  execution 488-600 

See  Special  Proceedinrja.    Execution. 
I'rocess, 

criminal,  issued  by  whom 1132 

directed   to   sheriff    of    adjoining    county, 

when 929,  030 

not  executed  on  Sunday 928 

in  inferior  court  not  discontinued,  when 807 

of  justice  of  the  peace,  not  quashed  for  want 

ot  form 908 

when  issued 824 

how  issued  out  of  county 871-87'l 

penalty  on  sherilt  and  other  officers  for  fail- 
ing to  execute  1112,2079,2088 

return  made  by  sheriff 598 

by  coroner 598 

not  returnable  to  special  terms  919,  920 

how  served 217,598 


Proce 


-Continued. 


Section 


served  by  publication,  inwhat  cases.  .218, 850. 1523 
sheriff  and  other  officer  to  receipt  for,  evi- 
dence  2081 

See  Summons. 
Processioners, 
appointed  by  county  commissioners;  county 
surveyor   deemed;    oath   and    term   of 

office 1934,  1931 

I     how  to  proceed  in  cases  ot  disputed  lines 1928 

to  make  report  of  land  processioned;  report 

returned  to  clerk  and  recorded 1927 

Processioning, 

owners  of  land  to  file  petition  for 1926 

who  not  bound  by;  successful  party  deemed 

owner 1929 

appeal  allowed 1930 

procceedings  in 1924-1931 

Prohibition, 
statutory,  time  of  not  counted  to  bar  action.     167 
See  Local  Option. 
Promise, 
to  charge  executor  personally  must  be  in 

writing 1506 

to  pay  in  writing,  repels  limitation 172 

to  pay  debt  of  another,  in  writing I6OS 

Property, 

REAL, 

action  by  the  state,  when  barred 1.39 

may  be  brought  twelve  months  after  non- 
suit, <t'c 142 

bid  in  by  executors,  &c.,  when 1505 

causes  of  action  concerning,  may  be  joined . .    267 
defendant  to  file  bond  in  action  for  recovery 


of. 


237 


descended  chaiged  with  debts  before  devised 

property 1430 

exemptions 601-524 

forfeited  to  the  state,  action  brought  in  su- 
perior court  621 

granteo  ot,  may  sue  in  his  own  name 177 

judgment  for  plaintiff  in  action  for,  when 

undertaking  not  filed 890 

landlord  and  tenant  may  be  joined  as  defend- 
ant in  action  to  recover 184 

lawful  to  convey  in  trust  for  support  of  child 

or  relation ;  for  what  debts  liable 1335 

malicious  injury  to 1081,  1082 

possession  ot,  for  thirty  j'ears  bars  state 189 

for  twenty-one  years  with  color  bars  state.    140 
for  seven  years  under  color  bars,  whom. . .     141 

of,  ratified  and  confirmed 140 

proceeds  ot  sale  ot,  remaining  after  payment 

of  debts  togoasland 1401,  1405 

sales  of,  by  guardian,  how  made 1602,  1604 

sold  to  pay  debts,  when  and  how 1436,  1437 

sold  under  execution,  when  and  how 454-463 

trespass  upon,  defendant  may  disclaim  title, 
and  plead  tender  in  bar 677 

PERSONAL, 
conditional  sales  of,  to  be  in  writing  and  reg- 
istered    1276 


INDEX  TO  VOLUME  I. 


S75 


Property— Continued.  Section 

executors,  &c.,  powerto  sell UOB,  1409 

exemptions 501-524 

forfeited  to  state,  actions  brought  in  superior 

court ^-' 

lawful  to  convey  in  trust  for  child  or  rela- 
tion ;  for  what  debts  liable 1335 

malicious  injury  to 10*1.  108x! 

shares  of  corporations tj^^ 

sold  under  attachment,  when 3C0 

in  trust,  judge  may  order  to  be  deposited 

or  delivered 380 

Prosecutor, 

costs  to  be  paid  by,  when T37. 1304,  3r50 

imprisoned  when,  for  non-payment  of  costs.    T38 
Protest, 

of  bills  of  exchange '^ 

of  notaries,  &c.,  evidence  of  demand 49 

Protested  bills, 

damages  on '»° 

interest  on **' 

Proxies, 
of  state  in  railroad  companies  appointed  by 

board  of  internal  improvements 1718 

Public  Administrator, 

See  Executors  and  Administrators. 
Publication, 

in  attachment 350,352 

ot  delinquent  taxpayers  required 2092 

of  summons,  in  what  cases 218, 1523 

manner  of 219,221,227 

Public  Guardian, 

appointed  by  whom 1556 

bondof 1557 

bond  enlarged 1^58 

of,  renewed  every  two  years 1559 

letters  of  guardianship,  to  be  applied  for  by  1561 
revoked  when 1561 


oath  of 


powers  and  duties    same  as    other  guard- 


1560 


1561 


lans 

Punishment, 

for  felonies  and  misdemeanors,   not  speci- 
fied  1096,1097 

Purcbaser, 
deeds,  &c.,  made  to  defraud  purchaser  for 

value  without  notice  void 1546 

of  estates  conveyed  in  fraud  of  creditors  to 

have  relief 1550 

title  good,  under  deeds  made  on  illegal  con- 

sidersition  without  notice 1549 

ot  property  at  execution  sale,  title  defective, 

may  sue  defendant  in  execution 468 

under  judicial  sales,  owner  for  what  purposes    942 
variance  between  execution  and  judgment, 

not  to  affect  title  of .  •    1347 

Putative  Father, 

warrant  for 32 

how  punished ^5 

Quakers, 

allowed  to  wear  hats  in  court 943 

Qixestions,  ^         I 

of  fact,  how  tried.     135,  :i99 


Quo  Warranto,  Section 

trial  in,  expedited 61ft 

writ  of,  abolished ^03 

Bailtoad  Companies, 

articles  for  formmg •  •  ■  ■  1S>32 

not  to  be  recorded  until  stock  subscribed 

and  tax  paid '^^^ 

copy  of,  presumptive  evidence  of  inooi-por- 

ation 1931 

director.,  to   open  books  of   subscription 

under 1^35 

president  and  directors,  how  chosen,  terms 
of  office,  voted  for  by  shares,  qualifica- 
tions and  vacancies I'j36 

purchaser  of  property  under  mortgage,  ex- 
ecution, &c.,  may  file  articles  and  shall 

be  a  new  corporation 1936 

officers  under,  appointed  by  president 1937 

stock  to  be  paid  by  instahnents,  not  paid, 

forfeited 1938 

stock  insufficient,  amount  increased 1939 

liability  of  stockholders  for  debt 1940 

executors,  guardians,  &c.,  of  stockholders 
not  Uable  personally,  but  estate  of  testa- 
tor, ward,  &c., liable 1941 

baggage,  check  and  duplicate  for,  liability 

for  loss 19^0 

bridges  across  streams,  draws  in,  kept  by . . . .  2051 

over  county  roads  to  be  kept  up  by 2054 

can  enter  the  lands  of  another  to  build  works, 

&c 1698 

disagreement,  proceedings  to  assess  dam- 
ages  1699,  1700,1716 

capital  stock,  how  transferred  to  lessee 1994 

cattle  guards  to  be  maintained,  failure,  mis- 
demeanor  1975 

killed  by,  evidence  of  negligence 2326 

chapter  on  corporations  apphcableto;  how 

repealed ''^1 

companies  to  keep  an  account  of  produce 

carried,  report,  &c  I'l^ 

conditional  sales  of  property  void  unless  in 

writing ; -'^ 

conductor  intoxicated,  misdemeanor 1972 

corporate  existence  ceases,  if  road  not  com- 
pleted in  time  as  specified 1980 


corporate  powers . 


1957 


county  subscriptions,  made  by  whom 1996 

manner  of  making 1997 

election  for,  how  held 1998 

interest  on  bonds,  how  paid 1999 

taxes,  how  collected  and  paid 2000 

crossing  other  road,  not  to  obstruct  it 1710 

dissolution,  company  dissolved,  &c.,  owner 

or  purchaser  new  corporation,  and  taxed,  2005 

dwelling-houses  not  condemned  by 1701 

engineer  intoxicated,  misdemeanor 1972 

entering  cars  of,  after  being  forbidden,  mis- 

demejinor 1979 

fare  and  freight,  general  assembly  may  re- 
duce  .••1°«1 

failure  to  keep  bridges  over  highways,  mis- 
demeanor  


2051 


876 


INDEX  TO  VOLUME  I. 


B&Uroad  companies— Continued.  Section 

freight  received  and  f  onvarded,  penalty, 1964 

list  o£  charges  for,  to  keep  posted,  not  in- 
creased without  notice,  penalty 1905 

discrimination  in,  unlawf  ul,penalty,  special 

contracts  may  be  made 190C 

unshipped  tor  five  days,  penalty 1907 

pooling  and  rebates  forbidden,  penalty 1908 

attorney-general  to  institute  action  in  cer- 
tain cases 1969 

unclaimed ;  publication  thereof 1985 

unclaimed,  perishable,  sold 1986 

proceeds  go  to  University 1987 

directors  authorized  to  give  through  freight 

and  travel 1995 

general  assembly,  may  annul  any  corpora- 
tion, effect  of  dissolution 1981 

no  bill  introduced  in,  unless  accompanied 

with  receipt  of  treasurer  for  tax 2004 

injuries  to,  with  and  without  mahce, 

1098,  1099,  1974 

interest  of  state  in,  how  controlled 1691 

laborers,    indebtedness    to,    how   collected, 

time  specified  for  action 1942 

lands,  right  to  acquire 1943 

petition,  contents,  parties  and  manner  ot 

service I944 

commissioners  appointed ;  duties 1945,  1946 

mode  of  proceeding,  judgment,  effect  of, 

appeal  and  subsequent  proceedings 1946 

court  may  adjudge  rights  of  conflicting 

claimants 1947 

court  may  appoint  attorney  to   protect 
rights  of  parties,  and  make  allowance  for 

his  service 1948 

court  must  take  cognizance  of  all  proceed- 
ings and  make  all  necessary  orders 1949 

change  of  ownership  not   to  affect  ap- 
praisal   1950 

defective  title  to,  how  remedied 1951 

secretary  of  state  in  certain  cases  to  grant 

land 1955 

town  authorities  in  certain  cases  to  make 

grant 195,5 

superior  court   empowered    to   authorize 
guardians  to  sell,  for  raih-oad  purposes..  1956 
location  of  same  line  embraced  by  two  or 

more  companies,  how  constructed 1983 

In  adjoining  state  how  considered 1984 

maps  to  be  furnished  by,  to  board  of  internal 

improvements 1714 

material  for,  can  be  taken  from  adjacent 

ground 1702 

damages,   how  assessed;  proceedings;  ap- 
peal, &a 1703,  1704, 1706 

must  be  established  by  law,  penalty 1717 

obstructions  to;  highways,  turnpikes,  rail- 
roads, &c.,  may  be  crossed...  1954,  (5)  (6)  1957 
oificers  to  account  to  their  successors,  fail- 
ure, misdemeanor 2001 

persons  conspiring  with,  misdemeanor 2001 

governor  to  make  requisition  upon  other 
states  for 200-J 


Bailroad  companies— Continued.  SscnoN 

passengers  violating  rules  ejected 190» 

injured  when  not  compljong  with  rules,  no 

redress,  proviso 1978 

penalties  against;  actions,  how  brought 1976 

police  may  be  established 1988 

governor  to  appoint 1989 

oath;  badge;  compensation;  dismissal  1990-1993 
president  of,  to  report  to  board  of  internal 

improvements 1693 

reports  annually  to  be  made,  verified,  filed 
with  secretary  of  state,  statements  to  be 

made 1959 

failure  to  make,  penalty i960 

rights  and  privileges  conferred  by  chapter 

f  orty-nine  possessed  by  all  companies 1982 

road  of ,  can  be  turned  1711 

damages  allowed  owner  of  land 1712 

route  of,  profile  maps  of,  made  and  filed ;  no- 
tice ot  given  to  occupants  ot  land ;  pro- 
ceedings if  route  objected  to;  not  altered 
imless,  &c. ;  certificate  of  commissioners 
filed  in  clerk's  ofiice,  compensation   of 

commissioners 1952 

directors  may  change ;  certificate  ot  altera- 
tion filed  in  clerk's  office;  effect  of  alter- 
ation; not  made  in  cities  unless  by  vote 
of  corporate  authorities;  compensation 

for  injury  to  whom  made 1963 

chart  of,  to  be  made  and  tiled 1977 

servants  ot,  to  wear  badges 1958 

shooting  at  or  throwing  into  cars,  &c.,  pen- 
alty   1100 

Sunday,  passenger  or  mail  trains  only  run 

on 1978 

unloading  or  loading  freight  cars,  misde- 
meanor   1978 

taxes   on   bill   to   create,   alter  or  amend 

charter 2004 

trains  arranged  how,  failure,  penalty 1971 

transportation, rules  of , fixed  by  public  notice; 
furnish  accommodation  for  passengers 
or  property  from  usual  stopping  places 

upon  payment  of  charges 1963 

width  of  land  condemned  for 1707 

quantity  condemned  tor  station,  &c 1709 

Rape, 

assault  with  intent  to  commit 1102 

carnal   knowledge   ot   married   woman   by 

fraud 1103,  1104 

definition  and  proof  ot 1101,  1105 

Real  Party, 

in  interest  to  bring  action 177 

Kebellion, 

against  state 1106 

conspiracy  to  destroy  state 1107 

Receivers, 
appointed  to  settle  affairs  ot  corporations, 

powers 379,    668 

by  whom  and  when 879 

fees  of (4)    879 

pay  debts  and  distribute  surplus 670 

in  action  on  bond  of  guardian  by  solicitor. .  1585 


INDEX  TO  VOLUME  I. 


877 


Receivers — Continued. 

jurisdiction  over 6Ba 

removal  by  judge 3^ 

in   supplementary   proceedings,  how    and 

when  appointed ^^'^ 

vested  with  property,  when 495 

orderflled,  where *^^ 

when  to  bring  action 497 

of  stolen  goods,  how  punished IW* 

trustees  to  deposit  or  deliver  property 380 

how  punished *^ 

undertaking  of ^°^ 

Recognizances, 

clerk  to  refund  remitted 1206 

county  treasurer  to  refund  also 1207 

broken,  when 1227 

breach  of,  prosecuted 1228 

forfeited,  execution  when  to  issue 1908 

proceedings  on 12-^ 

joint  notice,  when  issued 1209 

judges  may  lessen  or  remit 1205 

notices  on,  how  executed 1210 

required  by  magistrate;  effect 1220, 1221,  1222 

returned  to  next  term  of  court 1223 

Recordari, 

writ  of ;  bond  for  costs 545 

from  judgment  of  justice  of  peace,  court 

may  compel  plaintiff  to  secure  costs 564 

Records, 
authentication  of 
See  Appendix,  Vol.  IL 
book  of  furnished  by  county  commissioners, 

113, 113 

kept  by  clerk  of  superior  court 112 

obliteration  of,  how  punished 1071 

Referee, 

appointed  to  take  affld  avit,  when (5)    594 

fees  of 533 

powers  of 599 

how  chosen,  who,  report 423 

find  law  and  facts  separately 422 

report,  exceptions  to ;  reviewed  how 422 

when  a  special  verdict 422 

in  supplementary  proceedings,  witness  com- 
pelled to  answer 492 

Reference, 

of  aU  issues,  when S98,  399,  420,    498 

compulsory,  or  by  consent,  when 420,    421 

Register  of  deeds, 

flies  bonds  of  coroner 663 

of  constable W 

keeps  book  of  marriages 1818 

mortgage  by  clerk  in  lieu  of  surety  filed  with. 


Section  I  Beglstration— Continued.  Sectiok 

669  1     of  lost  deeds,  &c.,  authorized 6* 

force  of •* 

new,  of  burnt  and  lost  deeds,  &c 56 

time  for,  of  deeds,  &c.,  extended 1279 

See  Deeds  and  Conveyances,  Mortgage,  Sale. 
Kebearing, 

application  for  in  justice's  court 845 

petition  for,  in  supreme  court,  when  and  how 

filed 566 

Relator, 
private,  leave,  when  granted  to,  by  attorney- 
general,  to  bring  action 608 

when  judgment  in  favor  of,  agamst  person 

usurping  office 611 

Relief, 

in  case  of  mistake,  surprise,  &o 274 

what,  granted    plaintiff,  when  no    answer 

med ^ 

Remedies, 

actions,  special  proceedings 185-127 

not  merged 131 

Removal, 
of  causes  to  federal  courts.    See  Appendix, 
Vol.  n. 
from  one  coimty  to  another.195, 196, 197, 198,1371 
from  one  justice  of  the  peace  to  another. . .    907 
of  judgment  of  justice  of  the  peace  to  another 

county 846 

of  justice  to  another  township;  forfeiture  of 


1747 


&c. 


ex  opdo  clerk  of  county  commissioners 716 

of  board  of  justices '''1'' 

penalty  for  issuing  marriage  license  unlaw- 
fully   1085,1816 

for  railing  to  record  licenses 1819 

to  justify  sureties  of  clerk  

See  Index,  Vol.  II. 
Registration, 
books,  fraudulentobliteration,&c.,of,penalty  1071 


of  proceedings,  when  clerk   disqualified  to 

act.  - 

Rent, 
how  apportioned,  when  estate  of  lessor  ter- 
minates   

death  of  person  entitled  to,  to  whom  pay- 
ment made 1''48 

formal    demand    for,  not  necessary  when 

there  is  a  proviso  for  re-entry 1745 

Renunciation, 
of  right  to  administration,  must  be  in  writ- 
ing, &e 1378,1380 

Reply, 

to  answer 208,225,    318 

demurrer  to 250 

frivolous,  judgment  on 388 

Reports, 
book  of  official,  provided  by  county  com- 
missioners        "1 

of  commissioners,  how  set  aside 389 

defects  in,  how  cured 289 

official,  of  county  officers 728,729,730,    731 

of  railroad  companies,  when  and  how  made, 

&c.,  what  to  contain 1959,1960 

Restitution, 

appellate  court  may  order  563 

on  appeal  from  justice  of  the  peace,  when 

ordered 886 

to  defendant  in  certain  cases 230 

judgment  of,  in  ejectment  cases 1774 

owner  of  property  entitled  to,  on  conviction 
of  felon 


1301 


878 


INDEX  TO  VOLUME  I. 


Restraining  order,  Section 

against  corporations (iHI 

before  issuing  in junetion 342 

granted  after  answer 340 

made  out  of  court,  how  vacated  or  modi- 
fied      546 

what  judge  to  grant 335 

before  whom,  returnable 336 

Returns, 
of  criminal  actions  made  to  clerk  by  justice 

of  the  peace 906 

of  fines,  iSc,  paid  county  treasurer..  96,724,    726 
See  vol.  11,  Elections. 
Reversions, 
grantees  of,  to  have  such   rights   against 
tenant  for  life  or  years,  as  grantors  had, 

1331,  1T65 
rights   of   holders   of  particular  estates, 

against  grantees  of 13.32,  1765 

Revocation, 

of  indenture  of  apprentice 16 

of  letters  of  adoption 5 

of  letters  of  guardianship (S)  1561,  1583 

of  letters  testamentary  or  of  administration 

by  clerk 1520,  2170,  2171 

Ridings, 

notification  of,  to  judges 913 

Right  of  way, 
how  obtained  by  railroad  companies. 

150, 1945-1951 

by  telegraph  companies 2008-2012 

Roads, 

hindering  the  making  of,  misdemeanor 2065 

obstruction  of,  misdemeanor 2065 

CAKTWAYS, 

how  obtained 2056 

how  altered  or  discontinued 2057 

gates  or  bars  erected  across 2057,  2058 

penalty  for  injuiing 2057 

CHUKCH  ROADS, 
how  established,  altered  or  discontinued, 

20G2-2064 
FOOTWAYS, 
hollow   bridges   and    footways  made   over 
swamps  and  streams  by  township  super- 
visors    2029 

HIGHWAYS, 

when  changed,  how  received 2041 

how  established,  altered  and  discontinued, 

2014,  2023,  2038,  2039 
gates  and  bars  across,  hcense  to  erect  how 

obtained 2057,  2058 

hands  when  and  how  summoned,  duty  of, 

notice 2019,  2W4 

how  apportioned 2026 

warrant  for,  failing  to  perform  duty 2021 

laid  out  by  live  freeholders 2040 

notice  to  ovcrRcrrx  of  2016.  201.') 

to  hands 2019,  2014 


Roads— Continued.  SscnoH 

overseers  of,  appointment  of,  and  notice  to. .  2016 

to  apportion  road  among  hands 2026 

failiu-e  of  duty,  misdemeanor 2022,  awW 

to  make  footways  and  hollow  bridges 2029 

measure  and  mile-mark  roads 2032 

report   to    board  of  supervisors,  moneys, 

.Sc,  coUected 2021,  2022 

set  up  sign  posts 2030 

summon  hands,  notice  to 201!i,  2044 

to  take  timber  and  earth  from  adjoining 

lands 2027 

owners  of  mills  and  ditches  on  and  across,  to 

keep  up  bridges 2036 

owners,  of  land  and  timber  used  in  repairing 

bridges  or  roads,  to  be  compensated 2028 

penally  for  removing  or  defacing  sign-posts 

or  mile-marks 2031 

persons  exempt  from  working  on 2018,  2059 

failing  to  work,  penalty 2020 

liable  to  work  on,  time 2017 

road  steamers  may  be  rim  upon 2061 

supervisors  to  examine,  during  the  month  of 

August 2015 

townships  divided  into  sections;  boundaries; 

overseers 2016 

width  of 2025 

turning,  on  one's  own  land 2042 

Robbery 1064 

See  Crimes. 
Rotation, 

of  judges 911 

Salaries, 

of  marshal  of  supreme  court 960 

of  servant  of  supreme  court 951 

See  Index,  Vol.  H. 
Sale, 

days  of,  under  execution 454 

hours  of,  under  execution 459 

conditional,  of  personal  property,  to  be  In 

writing  and  registered 1275 

by  executors  and  administrators, 

1408-1414,  1485-1447 
See  Executora. 

under  execution,  how  advertised 4.56 

postponed,  how  long 465 

judicial,  proceeds  of,  how  coUected 941 

of  personal  property  under  execution 460 

purchaser,  under  judicial,  what  title 94S 

Schools, 

County,  fines,  &c.,  paid  to 99 

public,  tax  on  articles  of  agreement  forming 

railroad  companies,  paid  to  treasurer  for,  1933 
public,  tax  on  articles  of  agreement  forming 
corporations  other  than  railroads,  paid 


to. 


678 


See  Vol.  U. 
Scire  facias, 

writ  of,  abolished 603 

Seal, 

attached  by  clerks,  when 442,  1W7 

furnished  by  governor. 8328 

of  county (31)    707 


INDEX  TO  VOLUME  I. 


879 


Seamen,  Section  I 

enticing  from  vessel,  penalty 1103 

to  harbor,  unlawful 1109,  1110,  1111 

Search  warrants, 

form  and  proceedings  on IITI,  1172 

Secretary  of  state, 
certifies  appointment  of  commissioner  of  affi- 
davit     654 

grants  lands  to  railroads  in  certain  cases 1955 

list  of  commissioners  of  afSdavits  printed ...    630 

published  in  statutes 637 

sent  by,  to  clerk 635 

preserves  oath  of  Judge  of  superior  court ...    924 
publishes  list  of  commissioners  of  affidavits 

resigning,  &c 639 

records  names  of  commissioners  of  affidavits,    634 
records  and  ffies  articles  of  agreement  of 

railroad  companies 1952,  1933 

See  Vol.  n. 
Security, 

additional  in  mortgage  bonds  for  costs 119 

defendant  to  give  when 237,    326 

for  costs  on  appeal  and  to  stay  execution, 

532,    554 


Seizin, 

definition  of (12)  1281 

livery  of,  in  conveyances  to  uses,  possession 

transferred  without 1330 

Servant, 

larceny  by,  of  master's  goods 1065 

See  Vol.  n. 
6et-o£r, 

in  actions  to  enforce  liens 1788 

See  Counterclaim, 
Shares, 

in  corporations  may  be  attached 362 

Sheriff, 
to  account  for  moneys  in  hand  in  like  man- 
ner as  clerks 1868 

actions  against,  for  trespass  under  color  of 

office,  limitation 156 

adjourns  interior  co>u-t  from  day  to  day 

superior  court 

allowance  for  keeping  horses 466,    467 

oppraisers,  &c.,  to  lay  off  homestead  sum- 
moned by ^2 

levy  made  on  excess 502 

bail  liable  to,  when 315 

bond  of 2073 

when  acting  as  county  treasurer 769 

to  be  approved  by  county  commissioners; 

deposited  with  clerk 2066 

to  be  registered 2066 

to  be  renewed  annually ;  failure ;  vacancy. .  2070 
when   justification   of,   required;  failure; 

vacancy - 2074 

in  claim  and  delivery,  liable  for  msuffloiency 

of  undertaking 323 

how  to  keep  the  property 3.30 

duty  of  sheriff,  when  property  claimed  by 

third  person 331 

to  take  property  concealed  in  buildings  or 
on  the  person 329 


Sheriff— Continued.  Section 

responsible  for  the  defendant's   sureties, 

when 327. 

claims  placed  in  hand  of,  to  be  collected  dili- 
gently   8086 

compensation  for  taking  convicts  to  peniten- 
tiary   2089 

how  paid 2090,  2091 

toroner  acts  as,  when 6^ 

day  of  receipt  of  criminal  process  endorsed, 

penalty H"^ 

defendant  m  attachment  recovering  of  plain- 
tiff, proceedings 372 

delinquent  tax-payers  published,  penalty ....  2093 
deposit  in  heu  of  bail,  to  be  paid  into  com-t, 

liabiUty 310 

dying,  &c.,  official  deed  made  by  whom 1S67 

duties  of,  relating  to  persons  in  work-houses.    793 
execute  writs  issued  by  board  of  internal  im- 
provements, penalty  for  f aUing 1721 

not  to  farm  his  office 2084 

fees,  unlawful,  forbidden 2082 

forthcoming  bond  to  be  taken  by 463 

furnish  grand  jury  with  list  of  retailers  of 

liquors,  penalty 2087 

to  have  custody  of  jail 2085 

to  appomt  keeper 2085 

imprisoned  in  what  jail 1874 

ineligibiUty  of  certain  persons  as...  2067,  206S,  2i)69 

Uability  for  failing  to  serve  summons 202 

liable  for  whole  debt,  in  case  of  negligence 

in  collecting 1888 

permitting  the  escape  of  one  in  execution.  2083 

as  bail,  when  313,  314 

money  collected  for  plaintiff  paid    immedi- 
ately   2080 

notes,  date  of  issue  of  executions 100 

obligations  of  persons  in  custody  made  pay- 
able to 2082 

order  of  arrest,  how  served  by 296,  297 

penalty  for  failing  to   execute  process,  Itc, 

1112,  2079,  2088 

for  failing  to  execute  writ  of  venire 1740 

for  failing  to  return  writ  of  habeas  corpus.  1639 

process,  executing  out  of  his  county. . , 9:31 

executed  by,  penalty  for  neglect  or  false  re- 
turn   2079 

going   out  of    office   without    executing, 

penalty 2088 

how  served,  and  returned  by 598 

.  served  on  shipboard  in  Hyde  and  Carteret. .  2078 

receipt  given  for;  evidence 2081 

property  ordered  to  be  deposited,  to  take 

charge  of 381 

publication  of  delmquent  tax-payers,  penalty  2092 

release  of  prisoner  without  bail,  penalty 1281 

removed  from  office,  duty  of  coroner    .2071,  20T2 
removing  from  state,  official  deed  made  by 


vhom. . 


1267 

resignation  by 2077 

successor  elected  by  county  commissioners.  8077 
;e;urn  to  be  made  by,  of  uffldavits  and  un- 


dertakings 


880 


INDEX  TO  VOLUME  I. 


Sheriff— Continued.  Section 

of  attachment  and  of  his  proceedings 376 

returning  "  no  sale"  for  want  of  bidders.what 

to  state,  penalty 463 

sale  by,  of  real  property  under  execution,  to 

notify  defendant "167 

supplementary  proceedings,  judgment  debtor 

may  pay  sheriff 489 

sureties  on  bond  of,  liable  for  fines,  &c 2076 

taxes  of  county,  collected  by 723 

See  Vol.  n. 
Shooting, 

at  cars,  locomotives,  &c.,  penalty 1100 

Sign  posts, 

setup  by  overseers  of  roads 2030 

Slander, 

limitation  of  action  for 157 

how  stated  in  complaint 265 

answer  to 260 

of  women 1113,  376S 

Slavery, 

donation  to  persons  while  in 1278 

persons  formerly  in,  when  deemed  married . .  1842 
Societies, 

secret  political,  prohibited 1095 

Solicitor, 
action  on  guardian  bond  by,    when;   com- 
pensation  1584,  1586 

duty  of,  in  case  of  escape 1083 

prosecutes  for  injuries  to  bridges 2055 

inspects  office  of  clerlj,  penalty 88 

notice  to,  in  cases  of  habeas  corpus,  when  given  1635 

pos(  77M)r(«m  examination  directed  by 1214 

proceeds  against  corporations,  when 691 

prosecution  of  certain  criminal  cases  in  fed- 
eral court 1239,  1240 

witnesses  to  be  discharged  by ;  certificate  of 

attendance,  &c 746 

See  Vol.  U,  iSalarUs  and  Fees,  Solicitor. 
Special  Proceedings, 
for  advancement  of  surplus  income  of  insane 

person  to  next  of  kin 1077,  1685 

for  alimony  of  lionatic  feme  covert  abandoned 

by  husband 1086 

clerlt  to  hear  simimarily ,  when 285 

code  of  civil  procedure  applicable 278 

commencement  of ;  by  petition,  when 284.    287 

complaint,  when  filed 281 

failure  to  file 282 

costs  in 541 

creditor  against  administrator  for  account,  1448 

definition  of 127 

devisees  and  legatees  to  compel  contribution 

by 1534 

for  draining  or  damming  lowlands 1297-1304 

for  draining  into  a  canal 1305-1310 

for  draining  lands  on  a  large  scale 13U-1322 

lor  dower 211 1-21 1 5 

against  executor  for  final  account 1525 

foreign  guardian  to  remove  ward's  estate  by, 

1598-1601 
by  guardian  to  sell  ward's  estate, 

1602-1005,  1674,  1G7.'.,  I»a6 


Special  proceedings — Continued.  Section 

infant  or  guardian,  being  petitioners  in,  order 

approved  bj'  judge 286 

for  legacies,  &c 1610 

for  mills lSlSl-1857 

nonsuit  of  plaintiff  in.  when 282 

orders  signed  by  judge,  when 268 

for  partitions 1802 

pleadings  in,  time  of  filing  enlarged 283 

processioning 1924-lt'31 

by  railroad  companies  to  condemn  land. .1944-1952 
sale  of  real  property  by  administrator  for 

assets 1436-1447 

sale  of  real  estate  belonging  to  wife  of  lunatic.  1687 

summons,  what  to  contain;  return  of 379,    280 

by  sureties  of  administrator  or  guardian  in 

danger  of  loss 1519,1606,  1607 

by  telegraph  companies  to  obtain  right  of 

way 2010-2013 

trivial  defect  in,  effect  on  report 289 

year's  allowance 2116-2135 

See  Vol.  n. 

Special  terms 913,  914,916 

Springs, 

penalty  for  putting  injurious  substance  In. . .  1114 
State, 

claims  against,  how  prosecuted 947,    948 

costs  incurred  in  what  action,  are  charged 

against 742 

property  forfeited  to,  action  is  brought  in  the 

superior  court 621 

Statutes, 

how  proved 13S8-1841 

private,  how  pleaded 264 

sale  of  land  under  private,  repealed 458 

Stniute  of  limitations, 

appucuDie  to  what  actions 136 

availed  of  by  answer 138 

general  provisions  of 161-176 

See  Limitation  of  Aeticns. 
Stockholders, 
in  old  banics  of  other  states,  action  against, 

barred 176 

Stud  horses, 

owners  of,  have  lien  on  colts 1797 

Subornation, 

of  perjury 1098 

indictment,  what  to  set  forth 118S 

Subpoenas, 

diwen  tecum,  when  may  be  issued 1872 

how  issued  and  served 677,  697, 1S56,  1866 

Successor, 
clerk  and  other  oOlcers  deliver  records,  pa- 
pers. &c.,  to Ill,  liM,  «13 

county  treasurer  to  deliver  books,  &c. ,  to. . . .    7ii7 
of  justice  of  the  peace  to  determine  unfin- 
ished business 888 

officers  to  hold  over  until  qualification  of. . . .  187S 
Suitors, 
judi.ial  bonds.  &c.,  for  benefit  of,  suable  in 

nume  of  state 61 

Summons, 
auliou  conimcuced  by 161,  199,838,287 


INDEX.  TO  VOLUME  I. 


R81 


Summons— Continued.  Section 

in  action  by  lessor  to  dispossess  lessee,  &c., 

1767,  1768 

alias  or  pluries,  when  issued 205 

appearance  of  defendant  equivalent  to  si^r- 

vice  of 239 

attachment  served  by  publication,  &c 348 

attested,  how 203 

bond  required  by  clerk  before  issuing S09 

contains  what  notice 213 

copy  when  and  on  whom  served 217 

in  creditor's  proceedings  against  executor, 
&c.y  to  account,  when  and  where  return- 
able    1450 

how  advertised 1451 

published,  how  and  when 1459 

issued  in  same  action,  to  several  counties, 

when 204 

issuing,  service,  and  docketing  of —  202,  832,  833 
against  joint  debtors,  &c.,  how  served;  plain- 
tiff to  proceed,  how,  when  not  served  on 

all 222 

in  mandamus,  how  returnable 633 

manner  of,  service  of,  on  corporation,  minor, 

lunatic 217 

against  partners,  how  served 232 

returnable  at  regular  term,  form 200 

to  second  term,  when 201 

service  of 214,  280 

what  notice  inserted  in 213 

after  judgment  on  joint  contracts  upon  de- 
fendants, not  summoned  before 223 

by  publication,  when  complete 218,  219,  337 

by  publication  in  actions  for  foreclosure  of 

mortgage 221 

by  publication  defendant  can  defend  before 

or  after  judgment,  exception 220 

how  proved 22S 

in  special  proceedings,  what  to  contain 279 

Sunday, 

an-est  in  civil  actions  on,  forbidden 29 

in  computing  time,  not  counted 59 

fishing,  hunting,  &c.,  on,  penalty 1115-111 

freight  trains  forbidden  to  run  on ;  loading 

and  unloading,  misdemeanor 1973 

Superior  courts, 

adjournment,  when,  by  sheriff 

appellate  jurisdiction 923 

certain  cases  transferred  to 944 

certiorari,  prisoner  not  discharged,  when —    937 

clerk  of,  office,  where  held,  when  open 80 

to  give  judge  holding  special  term  certifi- 
cate      918 

to  read  minutes,  &c 935 

courts,  exchange  of,  by  judges 913 

special  terms  of 913, 914 

adjourned,  when 926 

death  of  parties  between  verdict  and  judg- 
ment, not  alleged  as  error,  when 938 

districts,  counties  composing  judicial  910 

exchange  of  courts  by  judges 913 

former  judgment,  efTect  of,  plea  of,  in  penal 

suit  933 


Superior  courts— Continued.  Sectiok 

plaintiff  may  reply,  what 932 

grants,  letters  of  adoption 2 

effect  of,  order 3 

holding,  term  of,  time 910 

issues  of  law  or  fact  arising  on  contested  ad- 
ministration,   transferred     to    superior 

court  for  trial 1382 

judges,  rotation  of,  &c 912,  913 

judgment  certified  to,  from  supreme  court, 

how  proceeded  in 957 

judicial  sales  under  order  of,  proceeds,  how 

collected 941 

purchasers  at,  owners,  for  what  purposes..    942 

jurisdiction  and  powers  of 923 

original,  appellate 933 

of  bastardy 32-40 

of  divorce  and  alimony 1282 

opened  and  held  by  whom 910 

terms  of 910 

special,  regulations  concerning 913-921 

vacation,  rehef  granted  In 230 

Supersedeas, 

writ  of,  undertaking 545 

Supervisors  of  public  roads,  board  of, 

authorized  to  control  public  roads 2014 

to  establish,  alter  and  discontinue  cartways 

and  church  roads 2023,  3057, 3062-2064 

to  contract  for  building  and  repairing 
bridges  with  assent  of  county  commis- 
sioners  2034 

biennial  meetings  of 2015 

annually  to  divide  roads  of  township  into 

sections 3016 

annual  report  made  to  superior  court 2024 

appoint  overseers  and  allot  hands 2016 

contracts   for  building   bridges  binding  on 

county .2035 

erection  of  gates  across  cartways  and  high- 
ways   2057,  2058 

footways  and  hollow  bridges  made  by  order 

of;  orderpresumed,  when 2029 

furnish  constable    with    orders   appointing 

overseers 2043 

ovei"seers  to  make  verified  reports  to,  relat- 
ing to  condition  of  roads,  &c    2031,  2022 

persons,  infirm,  exempted  by 2018 

Supplemental  pleadings 277 

Supplementary  proceedings, 488-500 

See  Extcution. 
Supreme  Court, 
adjourned,  if  no  justice  attends  during  first 

week 954 

amendments,  &c.,  made  by 965 

appeals  to 946 

dismissed  when 967 

attorney-general  absent,  court  may  appoint 


969 


bond  of  clerk;  oath 958 

certificate  of  decision,  when  given 964 

claims  againtthe  state,  how  prosecuted  in, 947,  948 

clerk  allowed  rooms 9.">2 

office,  where  kept 958 


SS2 


INDEX  TO  VOLUME  I. 


Supreme  court — Continued.  Section 

to  record  proceedings 959 

to  talie  oath 9."i8 

costs,  execution  for,  issued,  how 908 

court  of  record 954 

deeds,  justices  of  courts  may  take  probate 

of,  &c 949 

exhibits  to  be  examiued  by 9(>3 

execution  not  to  be  issued  until  opinions  de- 
livered     904 

judgment  docketed  when  and  where 436 

lien  of 430 

final,  in  civil  actions  certified  to  superior 

court 937 

in  criminal  actions 957 

rendered  on  review  of  record 957 

jiuisdiction 945 

justices  of,  to  prescribe  rules  of  practice 901 

appoint  marshal,  compensation 950 

select  and  remove  servant;  fix  his  compen- 
sation     951 

oath  taken  by 955 

filed 955 

two,  sufficient  to  hold  court 95G 

license  attorneys 17 

name  and  style  of  court 954 

opinions  to  be  in  writing 904 

petition  to  rehear,  when  filed 906 

terms  of,  duration 953,  954 

Surety, 
action  against  surety  of  executors,  &c.,  limi- 
tation     155 

on  bond  of  executor,  how  to  obtain  relief 1519 

of  sheriff  liable  for  fines,  &c S076 

co-surety  sued  by,  for  ratable  part  of  debt 

paid  for  principal 2095 

defendant  may  show  suretyship,  justice  to 

find  facts 2100 

may  dissent  from  stay  of  execution,  then 
not  liable  to  stayer;  officer,  how  to  col- 
lect in  such  cases 2095 

of  euardian,  in  danger  of  loss,  how  relieved.  1600 
on  guardian,  bond  reUeved  by  payment  to 

clerk,  when ]C2a 

indorsers  of,  bills  liable  as 50 

judgment  against,  by  appellate  court,  on  ap- 
peal bond 503 

notice  to  creditor  by  surety  to  be  in  writ- 
ing   2097 

how  served ;  effect 2098,  SOflS 

on  official  bonds  to  justify 1%6 

paying  debt  of  deceased,  principal  to  have 
same  priority  as  creditor  had,  against  the 

estate 2096 

property  of  principal  liable  to  be  levied  on 

before  that  of  surety 2101 

summary  remedy  for  surety  again.st  prin- 
cipal    2093 

SurpluH, 

in  bands  of  executor,  paid  over,  when 1488 

to  be  distributed  by  receiver  of  corporation . .    670 
Surprise, 
relief  in  cases  of  neglect  or 374 


Surveyor,  SEoiio.t 

employed  by  commissioners  in  partition.   . . .  1895 

county,  deemed  processioner 1931 

Surveys, 
consolidation  of,  proviso;  common,  may  be 

registered I27i 

ordered  by  court,  when 93S 

Survivor, 
in  joint  tenancy  does  not  bold  the  entire  es- 
tate   1826 

Suspension, 

of  execution,  when 256,  &19,  S&4-S61 

Swamp  lands, 

commissioner  to  drain,  appointed;  duties ISIO 

damages  to,  drained,  how 1311, 1321 

proprietors    draining;   when  a  corporation, 

name,  shares,  <£c  1313, 1320 

Swearing, 
profane,  before  a  justice  of  the  peace,  pen- 
alty.-     848 

Talesuieu 863, 1733,  1734, 1737 

Tax, 

on  articles  of  agreement 678, 1933 

on  bills  to  create  or  amend  acts  of  incorpor- 
ation  696,2004 

fees  for  payment  of  jurors 7.12 

Telegrapli  companies, 
chapter  on  corporations  applicable  to,  how 

repealed 701 

injury  to  poles,  penalty 1 1 18 

lines  of ;  who  may  construct,  and  where 2007 

right  of  way ,  may  contract  for,  with  whom . .  2008 

upon  just  compensation. 2009 

obtained  by  petition,  contents 2010 

petition,  how  served  and  on  whom 2011 

proceedings  for  condemnation 2012 

conunissioners     may     inspect    premises, 

costs,  how  paid _ . .  2013 

Teleplione, 

injuring  poles,  penalty 1118 

Tenancy, 

length  o£  notice  required  to  terminate 1700 

Tenants, 
agreements  in  lease  by,  to  repair,  how  con- 
strued   1752 

in  common,  application  for  sale  of  real  estate 
by,  how  made,  order,  terms  and  notice 

of  sale 1903. 1904, 1005 

in  common  or  joint,  of  personal  property, 

actions  by,  when  barred  and  not 173 

in  common,  procedure  to  sell  laud  of,  when 

required  for  public  purposes 1907 

controversy  between  landlord  and   tenant, 

relating  to  crops,  how  determined . . .  1756-1788 
desertion    by,   of    premises,    remedies    of 

lessor 17T7 

holding  over,  dispossessed,  when 1766-1770 

injuring  house,  fruit  trees,  &c.,  of  landlord, 

misdemeanor 1761 

joint  share  of  co-tenant  deceased  does  not 

sur\ive,  proviso 1820 

not  liable  for  damages  by  acci<lental  fliv, 
except  by  contract 27W 


INDEX  TO  VOLUME  I. 


883 


Tenants-Continued.  Section 

for  life  making  claim  for  improvements 480 

for  life,  rights  of  against  grantees  of  rever- 
sion  133S,lTe5 

for  life,    right   of  grantees    of    reversion 

against 1331,1765 

payments  by,  without  notice  of  assignment 

of  reversion,  valid ^''^ 

removal  of  crop  by,  misdemeanor I'Sfl 

rights  of,  to  crops ^''^ 

right  of,  to  hold  untU  end  of  the  year  when 
lease   terminates   during  current   year, 


Township— Continued.  Section 

roads  of,  divided  into  sections,  boundaries, 

overseer  appointed 2016 

Treasurer,  state, 
to  credit  public  school  fund  with  tax  paid  by 
railroad   companies  formed  under  arti- 


when  . 


1749 


surrender  of  possession  to  other  person  than 
landlord 

svu-render  of  estate  by,  in  case  of  accidental 


1753 


.1333,  1765 


cles. 


fraudulent  entries  and  statements,  penalty. 
See  Vol.  11,  and  Constitution  of  N.  C. 


1933 
1119 


tender  of  rent  in  arrear  and   costs,  before 

judgment,  effect l''''^ 

for  years,  rights  of,  against  grantees  of  re- 
version  1331,1765 

rights  of  grantees  of  reversions  against  ten. 

ant  for  years 

Tender, 

of  compromise  of  action,  effect 573,  574 

pleaded  in  bar  of  action  of  trespass  on  realty.  577 
by  tenant,  before  judgment,  of  rent  in  arrear 

and  costs,  effect 1'''''3 

Terms, 

of  supreme  court ''53,  954 

of  superior  court,  regular 910 

special 913,914,917 

Testaments, 

See  Wills. 
Timber, 

lessors  of,  entitled  to  remedies  of  landlord, . .  1763 
Time, 

Computation  of 696 

in  publication  of  notltes 602 

not  counted 137,16^-168,170 

enlarged  for  filing  pleadings 283 

for  registration  of  deeds,  &c.,  extended 1379 

thirty  years  bars  state;  twenty-one  years, 

under  color ^^^ 

seven  years  under  color  bars  whom 141 

Title, 

colorof "•^'"'"J*i 

defendant  in  trespass  may  disclaim 577 

in  controversy  about,  befot-e  justice  of  the 

peace 8;37,  &38 

written   evidence   of,  concerning  destroyed 

deeds,  &c.,  valid 69 

Tomb  stones, 

defacing,  unlawful 108t 

prepared  for  members  of  the  general  assem- 
bly who  die  in  Raleigh.  287' 

Towns, 
Authorities    authorized   to   vote  change  of 

route  of  railroad 1953 

to  grant  land  in  certain  cases 1954 

Township, 

County  divided  into  (14)  '07 

new,  justices  f or,appointed  by  govenior.when    819 


Trespass, 

on  lands  after  being  forbidden,  penalty 1120 

on  pubUc  lands,  penalty 1121 

on  real  property,  limitation  of  action 153 

Trial. 

GENERALLY, 

action  against  foreign  corporations IM 

definition  of ^97 

exceptions,  how  taken  on 412,  418 

when  deemed  taken 413 

had  where  cause  of  action  arose 191 

where  designated    in    summons,   excep- 
tions  •. 195 

plaintiff  or  defendant  resides 192 

subject-matter  situate 190 

bond  of  officers,  or  of  executors,  &c.,  is 

given,  exception i93 

instructions  of  judge  to  be  in  writing 414 

issues  of  fact,  when  tried 400 

issues  of  law,  when  tried 394 

issues,  when  referred 398,  399 

issues,  tried  by  whom 398,  399 

judge  to  explain  law  arising,  not  to  express 

an  opinion  on  facts  413 

motion  for  new,  where  recorded 418 

not  allowed  by  justice  of  the  peace.   ...  845,  865 

order  ot  business  on 403 

place  of,  how  changed 190. 191, 193, 195, 196 

postponed,  how  and  when 401,403 

prayer  for  instructions  on,  in  writing 415 

preliminary,  of  prisoner  in  capital  cases 1143 

separate,  when  ordered 407 

term  expiring  dui-ing  trial  for  felony,  judge 

to  continue  term ^239 


BY  THE  COURT. 

issues  of  law,  tried  by,  when  tried 394,  398 

judgment  of  court,  how  given 417 

on  issue  of  law,  what  proceedings 419 

new,  granted  by  the  court  in  criminal  actions, 

M'hen  defendant  found  guilty 1203 

BY  THE  JURY, 
in  actions  between  landlord  and  tenant,  when 

allowed '"0 

damages  assessed  by  jury,  when 411 

issue  of  fact  tried  by 398 

jury,  liow  drawn  and  sworn  for 404,  405 

questions  of  fact,  how  tried  by 135 

speedy  trial  of  criminal 1341, 1313, 1658 

special  finding,  when ^09 

to  control  general  verdict 410 

verdict,  general  or  special,  w  lien 408,  409 


884 


INDEX  TO  VOLUME  I. 


Trial— Continued.  Sbction 

entered,  how 412 

waived,  how 416 

BY  REFEREES, 

Issues  referable 420 

mode  of  reference 422 

to  find  law  and  fact  separate 422 

how  chosen 423 

who  may  be 423 

to  report  in  what  time 423 

report  excepted  to 423 

how  reviewed 422,  423 

report  a  special  verdict,  when 4m 

reference  compulsory  or  by  parties,  when. .420, 421 
Trout,  xnountain, 

unlawful  to  flsh  for,  when , .  1122 

Trust, 
deeds  of,  good  against  creditors  only  from 

registration 1254 

of,  how  discharged  and  released 1271 

estates  in  personalty,  personal  assets 1403 

property  held  in,  not  liable  for  debts  of  cer- 
tain cestui^  que  truitt 1335 

purchaser  discharged  of  trust,  when  trust 

estate  sold  452 

Trustees, 

claims  against,  may  be  joined 207 

costs  in  actions  by  or  against 535 

of  express  trust,  executors  or  administrators, 
&c.,  sue  without  joining  ceutui  que  trust, .    179 

disobeying  order,  how  punished 381 

property  held  by,  deposited  or  delivered 380 

settle  affairs  of  corporations 668,  669,  670 

of  trust  deed,  when  and  how  appointed  by 

clerk 1276 

Turnpike, 

land  condemned  for 1708 

malicious  injury  to,  penalty 1098 

Undertaking, 

on  arrest,  given  by  plaintiff 294 

given  by  defendant 299 

in  attachment,  bow  conditioned 356 

defendant  in,  appearing  and  moving  to  dis- 
charge, form 374 

by  plaintUT,  to  indemnify  sheriil 871 

of  bail,  delivered  to  clerk,  notice  to  plain- 
tiff     304 

by  claimant  in  claim  and  delivery;  contents 

of;  whatdone 331 

for  costs,  required  by  clerk  before  issuing 

smnmons 209 

for  costs,  on  appeal 652 

in  claim  and  delivery,  of  plaintiff 324 

of  defendant 826 

in  code,  where  filed 001 

of  debtor  absconding,  in  supplementary  pro- 
ceedings  (4)    488 

defence  to  action  upon,  in  attachment  not 
affected  by  iiTcgularities  of  attachment.,    358 

of  defendant  In  actions  for  real  property 237 

exception  to.  In  claim  and  dchvery,  when  and 

how  taken ;  etlect 325 


Undertaking— Continued.  Sectioii 

homestead  cases,  for  costs 522 

injunction ^1 

may  be  in  one  or  several  instnunents;  con- 
tents; deposit  in  Ueu  of 559 

of  person  replevying,  what  to  contain 861 

of  receivers 389 

to  stay  execution  on  appeal  from  superior 

to  supreme  court 654,    658 

to  stay  execution  on  appeal,  from  justice's 

judgment 888,    884 

to  suspend  corporations 813 

United  States  bonds, 
guardians,  trustees  and  other  flduclariesmav 

invest  in 1.594 

University, 

executors,  &c.,  to  pay  property  to,  when 16M 

proceeds  of  sale  of  tmclaimed  freight  to  go  to,  1987 

trustees  to  sue  for  the  same 1504 

Uses, 
conveyances  to,  possession  transferred  with- 
out Uvery 1880 

Usurpation  of  office, 
action  for,  complaint  and  arrest  of  defendant    609 

judgment  in  action 610 

penalty  for 615 

Vacancy, 

clerk  of  superior  court 76,  78 

constable M6,  ?20 

coroner 720 

county  commissioners 719 

coimty  siuT^eyor 720 

coimty  treasurer 720,  766 

inferior  coiu"t 816 

oiBce  declared  vacant  by  coimty  commis- 
sioners, on  failure  of  ofiQcer  to  renew 

bond  annually : .  1875 

or  failure  to  give  bond 1885 

declared  vacant,  judge  to  file  proceedings 

with  clerk 1887 

registerof  deeds 720 

sheriff 720,  2070,  2074,  2077 

Vacation, 

superior  court,  to  grant  reUef  in,  when 230 

Vagrants, 

See  Vol.  n.  Tramps,  Vagrantt, 

how  released  from  workhouses 792 

Validation, 

of  contracts  of  aliens 8 

of  certain  probates  and  registrations 1369-1268 

Variance, 
between   execution   and   judgment  not  to 

affect  title  of  piu-choser 1347 

in  pleadings,  material,  immaterial 269,    270 

Venire, 
penalty  on  sheriff  for  tailiog  to  execute  writ 


of. 


1740 

special,  issued  by  judge  In  capital  coses. .  . .  1738 

how  drawn  and  summoned 1739 

Venue, 

in  divorce  cases 1289 

of  civil  actions 190-193, 195-198 

of  criminal  actions 1152, 1193,  1194 


INDEX  TO  VOLUME  I. 


885 


Verdict, 

in  claim  for  improvements 45S 

damages  assessed  in  certain  cases 411 

definition  of 408 

kinds  of;  how  entered 408,    412 

referee's  report  to  be  a  special  verdict,  when    483 

special  findings  control  general  verdict 410 

special,  by  jury,  when 408,    409 

Verification, 

of  pleadings 226,267,    258 

Vessel, 
lien  on,  for  labor  in  loading,  &o. ;  how  filed 

and  enforced 1804-1807 

owners  of  to  construct  draws  in  bridges,  pen- 
alty   2052 

levied  on  under  attachment,  when  sold 360 

penalty  for  fastening  to  float  bridge 2060 

Void  Contracts, 
account  for  liquor,  over  ten  dollars,  tmless 

signed  in  presence  of  witnesses 1555 

executor  to  pay  personally  delit  of  testator, 
or  a  promise  to  answer  the  debt,  »S:c.,  of 

another,  when 1552 

for  the  sale  of  land,  unless  in  writing  1564 

with  Cherokee  Indians,  imless  in  writing  —  1553 
Void  conTeyauces. 

deeds  to  defraud  creditors 1545 

to    defraud    subsequent  purchasers    tor 

value,  without  notice 1546 

by  heir  or  devisee  within  two  years  after 

qualification  of  executor,  &c 1442 

of  conditional  sale  of  railroad  property, 

unless  in  writing,  registered,  &o 2006 

of  corporation  as  to  existing  creditors  and 
as  to  torts  committed  by  such  corpora- 
tion, its  agents,  &c.,  at  the  time  of  exe- 
cution of  deed;  proviso 685 

Vouchers, 
presumptive   evidence   of  disbursement   or 

payment 1401 

Wagoners, 

to  extinguish  their  camp  fires,  penalty 54 

"Waiver, 

of  disqualification  of  clerk 105 

of  surety  or  deposit  on  appeal 652 

Warrant, 
accused  taken  before  magistrate  of  county 

where  issued 1141, 1142 

person  arrested  without,  heard  at  once 1130 

criminal,  where  to  run;  how  indorsed....  1135, 1136 

before  what  magistrate  returnable 1143 

peace,  proceedings  on 894 

when  issued;   to   whom   directed;  duty  of 

magistrate  on  return  of 1219-1221 

Warranties, 
collateral   and   certain    other,    made   void; 

deemed  covenants  only 1334 

Waste, 

action  and  remedies  for 624-629 

damages  for,  given  in  claim  for  improve- 
ments   474 

Water  courses, 
obstruction  of,  penalty 1123 


SECTION  !  Weils,  Section 

penalty  for  putting  injurious  substances  in. .  1114 
Widow, 

dissent  from  husband's  will,  effect 2108,  2109 

dower  of,  how  aUotted 2102,  2103,  2110-2114 

when  to  be  heir (8)  1281 

to  use  stock,  crop,  &c.,  until  year's  support 

assigned 1522 

year's  support,  how  assigned.. 8116-8126,  2127-2134 
See  Dower,  Year's  Support. 
Wife, 

abandonment  of 970,  971 

in  actions  against,  husband  to  be  joined,  but 

wife  not  be  prejudiced  thereby 1881, 1885 

adultery  of,  effect  on  dower  and  year  sup- 
port  S102,  2116 

not  capable  of  contracting  without  consent 

of  husband  1886 

consequences  of  elopement  with  an  adulterer  1844 
contracts  between  husband  and  wife  valid, 

whatnot 1836,  1836 

deeds  and  powers  of  attorney  of,  how  ex- 
ecuted, proved  and  registered 1266,  1257 

free  trader,  how  to  become  and  how  to  cease, 

1887-1832 
leases,  &c.,  of,  valid  and  what  not,  without 

privy  examination 1834 

liability  of,  for  debts,  &c.,  incurred  before 

marriage 1823 

lunatic,  abandoned  by  husband,  to  be  sui>- 

ported  out  of  his  property 1686 

owning  property,  order  of  sale  obtained 

from  clerk 1687 

may  insure  husband's  life  for  her  use 1841 

mortgage  to   secure  purchase-money  need 

not  be  executed  by 1273 

power  of,  to  make  a  will 1839 

real  estate  of,  not  sold  or  leased  without  her 

consent 1840 

right  to  administer  on  husband's  estate,  lost 

when  and  how 1480,  1481 

savings  from  separate  estate,  her  separate 

property 1837 

not  suing  for  divorce,  when  entitled  to  ali- 
mony    1292 

testifies  as  to  pregnancy  in  case  of  divorce. .  1288 

witness  for  or  against  husband 687,  1288 

competent,  for  defendant  husband  in  crim- 
inal proceedings 1363 

WUls, 
appointment  under  powers  in,  how  executed 

and  when  valid 2139 

caveat,  transferred  to  superior  court,  when  .  2159 
to  probate,  when  and  by  whom  entered  . . .  2168 
order  to  suspend  proceedings,  when  bond 


given  . 


2160 


costs  in  such  cases,  how  paid 2161 

certified  copy  of  lost,  evidence 58 

copy  of,  where  recorded 2174 

evidence *1 '  5 

children  bom  after  date  of,  shall  not  be  pre- 
judiced   2145 

clerks  may  compel  production  of,  by  process.  2154 


886 


INDEX  TO  VOLUME  I. 


WllU-continued.  Section 

copy  of  lost,  how  probated 5; 

of,  lost  or  destroyed,  evidence  when 2183 

of,  filed  in  office  of  secretary  of  state,  evi- 
dence   2181 

contingent  limitations  in,  how  construed 1J27 

destroyed,  contents  how  established. .  59,  63,  67 
devises  and  bequests  in,  to  witnesses  void  . . .  21-17 
devises  in,  lapsed  and  void,  to  pass  under 

residuary  clause 2142 

construed  in  fee,  unless  contrary  intention 

appear 2180 

not  effectual  without  probate 2174 

executed,  how  and  by  whom 2136,  2137 

executor  of,  competent  witness  of auo 

of,  who  disqualiBed  to  act 2162 

how  to  renounce 2163 

when  deemed  to  have  renounced 2164 

of,  under  disqualiflca.lon  of  age,  absence, 

&c.,  when  to  take  out  letters 2165 

fraudulent  concealment  or  destruction  of 1072 

general  gift  in,  includes  what  estate 2143 

gifts  in,  to  issue  dying  before  testator,  but 

leaving  issue  vest  in  such  issue 2144 

guardian,  father   or  mother   may   appoint 

^y 1562-1564 

holograph 0,35 

jurisdiction  of  clerk  of  superior  court  over..  1474 

letters  testamentary  on  lost 58 

how  issued  and  tested 2172 

of  administration  cvm  tentavientv  anntxo, 

when  and  to  whom  granted 2166,  2167 

will  of  testator  be  observed 2168 

meaning  of  word  "  will  " (9)  3755 

of  non-residents,  how  allowed  and  recorded.  21.56 

nuncupative /3j  oj^g 

oath  of  executors,  &c.,  to  be  taken 21G9 

original  to  be  filed  in  clerk's  office 2173 

power  of  married  women  to  make 1839   21.38 

power  of  sale  under,  not  affected  by  chapter 
entitled,    "  Executors   and    Administra- 

^^" 1415 

probate  of,  conclusive  until  vacated  or  de- 
clared void 2U;()^  o]74 

probate  of,  how  made 2148 

without  the  state 2155 

application  for,  made  by  whom 21 51    2152 

to  show  what 2153 

property,  rights  and  interests,di.sposed  of  by.  2140 
proofs  and  examination  of  witnesses  to  be 

written  by  clerk 2149 

when  proved,   former  letters   revoked    by 

clerk 2j~Q 

recorded  m  other  states,  proved  by  certified 

e°Py 1344 

record  of,  kept  by  clerk  of  superior  court.  (1)  112 
registry  of  wills  recorded  In  wrong  county, 

evidence  of 2182 

of  reiidents,  proved  in  another  county    or 

Btate,  how  allowed  and  recorded 21S7 

revocation  of  letters  testamentary  or  admin- 
istration, when  made 2170,  2171 

take  effect  as  at  death  of  testator 2141  I 


WilU-Cuiitinued.  Skctioh 

time  of  controversy  about,  not  counted 168 

widow's  dissent  f  10m,  effect 2108,  2116 

time  for  making  dissent  2108 

written  how  and  when  revoked 2174 

by  marriage 217T 

not  revoked  by  altered  circumstances 2178 

nor  by  conveyances,  &c.,  after  execution 

of 21^ 

M  Itnesses. 

appeal  from  justice  of  the  peace,  only  two 

bound  over 745 

attendance  proved  at  each  term;  may  re- 
cover fees 1369 

attend  special  terms 920 

not   to   attend    untU   day   set  for  criminal 

docket J.1U3 

attends  until  discharged 1.356 

before  grand  jury,  when  paid 743 

before  commissioners  to  take  depositions, 

1363,  1364 

certificate  of  solicitor,  by  whom  filed 746 

co-plaintiff  or  co-defendant  to  be 587 

crime  does  not  incapacitate 1350 

in  cr/minal  actions,  only  two  paid. .  744,  1370,  3756 

how  far  paid  by  county 744 

certificate  of  solicitor  or  order  of  court 

necessary 74^ 

cross-examined  by  prisoner 1145 

defendant  in  crijumal  proceedings   compe- 


tent when 


1353 


of  defendant,  when  county  to  pay 747 

devises  and  bequests  to,  void 2147 

execution  not  to  issue  against  defaulting 

witness  until  after  notice 1355 

executor  competent,  to  prove  execution  of 

"^ 2147 

exempt  from  arrest  in  civil  actions,  attend- 
ing court j3g7 

failing  to  appear,  how  punished 65-( 

fees  of,  in  criminal  cases : 1204,3756 

fees  of,  how  paid  in  criminal  cases.   ...  1204,  3756 
husband  and  wife  may  be,  exceptions, 

588,  1288,  1353 

interest  not  to  exclude egg,  1350 

before  jury  of  view,  how  paid 1365 

justice  of  the  peace,  how  summoned,  pen- 
ary     847 

parties  examined  as,  when 580-582,    600 

person  whoso  name  is  forged,  competent. ...  1192 
persons  engaged  in  gaming  made  competent.  12IS 
for  whom  action  is  brought  or  defended, 

tnay  be 586 

rules  for  summoning 1355 

security  to  be  given  for  appearance,  failure, 

pen*"? 1154,  1155 

of  Btate,  when  paid  by  county 740 

subpoenas  for,  issued  by  clerk  in  cases  not 

otherwise  provided jsgg 

summoned  to  prove  deeds,  when 1268 

in  supreme  court,  how  examined ggs 

testimony  of  party  as  to  new  matter  may  be 
rebutted ggg 


INDEX  TO  VOLUME  I. 


887 


1070 


Witnesses— Coutiuued.  Section 

tictets,  how  restored  when  destroyed 63 

llled  with  clerk,  taxed  as  costs 13™ 

Woman, 

abortion,  miscarriage.  &c..  procuring 975,    976 

not  subiect  to  arrest  in  civil  actions (5)    291 

slander  of  "1^'-  ^763 

Wood, 

larceny  of ,  &c  

notice  given  before  fli-ing 6^-      "-^ 

wagoners  to  put  out  camp  fires,  penalty S4 

Work  liouses, 
action  on  behalf   of,    brought   in   name  of       . 

county  commissioners "i^'™ 

compensation  of  manager,  <S:c 789 

directors  of,  how  appointed ^8i 

duties  of  sheriff  relating  to  persons  commit 

ted ;-    ™ 

established  by  county  commissioners.786, 796,    i9i 
manager,appointed  by  county  commissioners.  788 

bond  of,  duties ''^ 

assigns  employment  to  offenders 794 

penalties  for  absconding  from 'i'31 

taxes  levied  for  support  of,  by  county  com 

missioners 

two  or  more  counties  can  jointly  establish. 799-801 

vagrants,  how  released  from '•^- 

Writings,  ^ 

admission  of ■^'  •    "'' _ 

inspection  ot,  how  obtained ""S,  13.3 

conditional  sales  of  railroad  property  void, 
unless  in 


Writings— Continued.  SectioS 

leases,  &c.,  of  miueral  lands  shall  be  in 17« 

promise  in,  repels  statute  limitation 172 

sales,  conditional,  ot  personal  property  to  be 

in,  and  registered ^"'^ 

Writs, 

of  certiorari,  recordari,  and  supersedeas M5 

of  eiTor  and  quo  warranto,  abolished 544,  Ii03 

Tear, 
lease  of  lands  tenmnating  during,  tenant  to 

hold  to  the  end  of  the  year 1749 

(3)  (4)  3764 


.790, 796 


2006 


2126 
2117 


meaning  of 

Year's  support, 

allowance  to  widow  credited  to  personal  rep- 
resentative, &c 

assigned  from  what --^  •  •  ■  ■  ■ 

by  whom 2120.  2)21,  .132 

duty  of  personal  representative  or  coUector 
to  assign 

family  of  deceased  person  defined  for -na 

proceedings  for,  before  justice  ot  the  peace,    ^^^ 

value  of  allowance 2118,2132 

what   widows   entitled  to;   effect  of   adul- 

2116 

tery • 

widows  apply  for,  by  special  proceedmgs, 

2128,  21«J 

complaint  what  to  set  forth 2130 

judgment  to  be  given 2131,  2134 

report  of  commissioners,  exceptions.. 2132,  2133 

costs  in  discretion  of  the  court ■  ■  •  ■  •  ~1^ 

fees  of  commissioners,  sheriff  and  justice. 


2135 


•,1 .      ^'*'* ".' 


^-al 


